Indiana Court Decisions: March 12-25, 2020

7th CircuitCourt of Appeals

March 20

Civil Tort — Employment / Gender Discrimination

Molly Joll v. Valparaiso Community Schools

18-3630

A would-be high school running coach who says she was passed over for a coaching job in favor of younger male applicants will be able to make her claim for sex discrimination in court after a majority of the 7th Circuit Court of Appeals reversed summary judgment for Valparaiso Community Schools.

Judges David Hamilton and Joel Flaum remanded for a trial on Molly Joll’s sex discrimination claim in Molly Joll v. Valparaiso Community Schools, 18-3630. Joll has was the coach of the Thomas Jefferson Middle School cross-country teams for several years before resigning in 2013 to support her daughters’ running careers. One year later, however, Joll once again had time for coaching, so she applied for a girls’ coaching position at Valparaiso High School. She did not hear back for nearly a month, but finally, with the help of union officers, she received a text asking her to interview with Principal Reid Amones.

“Joll has substantial experience both as a coach and as a runner herself,” Hamilton wrote in the majority opinion. “She ran cross-country and track all four years of high school and attended Indiana State University, an NCAA Division 1 school, on a full athletic scholarship for both sports. After receiving her master’s degree in education, Joll spent about five years as the girls’ track coach at a junior high school in central Indiana, with a one-year stint as a volunteer track coach at a school in the United Kingdom as part of a Fulbright teachers’ exchange program.” She was also an assistant coach at Valparaiso University, he said.

But rather than discussing her experience, Joll’s interview with Amones focused on her 2013 resignation and whether her parenting duties would allow her to spend enough time on coaching duties. The other applicant, 40-year-old John Arredondo, had also resigned from a coaching job in 2013 for family reasons, but his interview did not feature questions about his family life. Arredondo was eventually selected for the job.

Per protocol, Arredondo’s references were checked only after school officials decided to recommend his hiring to the school board. Joll’s references, however, were contacted within days of her interview, with Amones taking specific note of one concern that her “dominate (sic) personality” meant she would struggle in a subordinate role.

Joll was told Arredondo was selected because of his “more current experience working with high school age athletes.” She instead decided to apply for another coaching position at the high school, this one with the boys’ team, and was once again asked in her interview about family matters.

As with the first job, Joll’s references were handled differently than the successful candidate’s, 28-year-old Ben Kerezman. Kerezman’s references were not checked at all, and he did not have more recent high school coaching experience, Hamilton wrote. Instead, Kerezman was said to have “better rapport with the boys.”

Later, however, athletic director Herb Hofer testified that the only factors considered in the boys coaching position were being a teacher at the high school and recent high school coaching experience. But Hamilton noted Kerezman did not have more recent coaching experience, while Arredondo, the person selected for the girls’ coaching job, did not teach in the school district.

Joll sued the school district in July 2016, claiming violations of Title VII and of the Age Discrimination in Employment Act. Magistrate Judge John Martin granted summary judgment to the school district on both the age and sex discrimination claims, prompting the instant appeal.

In reinstating the sex discrimination claim, Hamilton first said a jury could reasonably infer that Hofer and Amones did not want to hire a woman for either position, so they took all available steps to ensure Joll, the only woman applicant, was not hired. In support of that finding, the majority pointed to Joll’s initial struggle to get an interview, the fact that her references were contacted sooner than normal, and the family-based question in her interviews.

“Job interviewers are of course entitled to probe applicants in relevant ways, and they are not required to take an applicant’s answers at face value,” the majority wrote. “… But the telling twist in this case is that, although family matters had recently prompted his resignation from a similar position, Arredondo’s commitment was not questioned. He ‘talked shop,’ not kids, with the interviewers.”

On the issue of references, the interviewers chose to give weight to the comment about Joll having a dominant personality, Hamilton said, yet discounted two overwhelmingly positive recommendations she had received. “The point,” he said, “is that a jury could draw on its experience to conclude that the same behavior may be labeled ‘assertive’ in a man and ‘aggressive’ in a woman.”

Further, while the school officials cited inconsistent factors as their reason for choosing the men over Joll, the majority said those factors consistently favored the male applicants. For the girls’ job, Arredondo was credited for having recent high school coaching experience, but for the boys’ job, Kerezman was credited for working at the high school.

“We recognize, of course, that there are ways to tell the story of the school district’s hiring process and decision that are entirely innocent, involving no unlawful discrimination,” Hamilton concluded. “… But because there is at least one reasonable way to tell the story in favor of Joll’s claim of sex discrimination, a jury rather than appellate judges must choose among them.”

In a dissenting opinion, however, Judge Kenneth Ripple said he did not believe Joll provided evidence for a jury to conclude that she would have been awarded either coaching job if she were male.

Specifically as to the girls’ coaching job, Ripple said there was no evidence the school knew Arredondo had resigned because of family issues, while Joll had filed a resignation letter to that effect.

As to the references, he noted the person who made the “dominate personality” comment had previously supervised Joll, so it made sense that his recommendation would be given weight. “Indeed, it is difficult to conceive of how (the reference) might have voiced his legitimate concerns without running afoul of the majority’s concepting of sex-stereotyping,” the dissenting judge wrote.

Further, while Hofer generally did not check references until after deciding to recommend a candidate to the school board, he was recovering from a surgery from the hiring process and had to leave the process in Amones’ hands, Ripple said. Thus, “there is nothing inherently suspect about Dr. Amones’ proceeding in a different manner than Mr. Hofer.”

Finally, as to the boys’ coaching position, Ripple noted, “Kerezman had regular contact with the students and an opportunity to build on this relationship in ways that Ms. Joll could not. It is difficult to argue that this consideration is not a legitimate one.”

Indiana Supreme Court

March 23

Miscellaneous — Justice Center Title Dispute

City of New Albany v. Board of Commissioners of the County of Floyd

19S-MI-674

After considering a dispute over ownership of the Floyd County criminal justice center, the Indiana Supreme Court concluded a turnover provision in a lease between the county and the building authority is valid and enforceable.

In 1992, Floyd County entered into 15-year lease with the New Albany, Floyd County Building Authority, allowing the county to lease a criminal justice center while the city sublet space from the county. The lease included a provision that allowed the county to request the title of the property at the conclusion of the agreement.

Ten years later, however, the building authority refused when the county demanded the title to the center. The Floyd Superior Court initially ordered that the title be given to the county, but a split panel of the Indiana Court of Appeals found the turnover provision was not valid under Indiana Code section 36-9-13.

The Indiana Supreme Court sided with the trial court in City of New Albany v. Board of Commissioners of the County of Floyd, 19S-MI-674, concluding that the turnover provision in the lease was, in fact, valid.

“We agree with Judge (Elaine) Brown that there is no conflict between the two statutes. While Indiana Code section 36-9-13-22 sets forth various specific powers of the board of directors of a building authority, it does not by its plain language limit a building authority’s ability to transfer property,” Justice Steven David wrote for the unanimous high court. “Instead, it provides, among other things, for a building authority to receive gifts, devises or bequests of property and then once received, for the ability to dispose of that property. There is nothing in section 22 to suggest that these are the only powers granted to a building authority or that this section provides the sole manner for disposing of property belonging to a building authority.

“Indiana Code section 36-1-11-8 provides more broadly that governmental agencies, including but not limited to municipal corporations like a building authority, may transfer or exchange property,” the high court continued. “The fact that there are multiple code sections that give a building authority the ability to transfer property does not, by itself, mean that that the statutes are inconsistent absent some language that indicates as much. Because these two statutes can operate under their own separate requirements that do not conflict, both can and should be given meaning and effect without overriding one another.”

Additionally, the justices noted that the Indiana General Assembly adopted the statutes during the same legislative session and thus neither statute is supplemental to, or overwritten by the other.

“Accordingly, there is no indication that the two statutes are in conflict and we will not read them as such when they both can stand independent of one another,” the high court concluded.

Indiana Court of Appeals

March 12

Miscellaneous — Transgender Name Change

Name Change Of: R.E.

19A-MI-02562

A transgender man denied a motion to privately change his name and gender on his birth certificate won a reversal from the Indiana Court of Appeals, which admonished a trial court for denying the man’s petition and treating him disrespectfully.

R.E., an individual assigned female at birth who identifies as a male, filed his name and gender marker change petitions in 2019. He also filed a request to waive the publication of his name change in the newspaper and to seal the case under Indiana Administrative Rule 9(G).

The Newton Circuit Court denied his requests, however, ruling that R.E. “failed to set forth sufficient evidence to meet even a minimal threshold of proof that her [sic] gender has actually been changed from female to male.”

But the Indiana Court of Appeals reversed in R.E.’s favor on appeal in Name Change Of: R.E., 19A-MI-02562, finding that the trial court used an erroneous legal standard in determining R.E.’s petition to change gender marker.

The appellate court initially noted that it was “apparent from the proceedings before the trial court that that court would not grant R.E.’s petition to change the gender marker on his birth certificate based on R.E.’s testimony alone but instead wanted some form of medical evidence that R.E. had actually undergone a physical sex change.” However, in a footnote, the appellate court pointed out that “at three different points in the trial court proceedings, the court rejected R.E.’s medical evidence, each time for a different reason.”

It therefore found no question that R.E. met the threshold that his request was made in good faith and not for fraudulent or unlawful purpose, the only requirement R.E. had to show in order to obtain the change to gender marker on his birth certificate.

“The trial court’s insistence that R.E. could not meet his burden on his petition without medical evidence of an actual physical change to R.E.’s body, that R.E.’s ‘gender has actually been changed from female to male,’ is contrary to law. No such evidence or enhanced burden of proof is required to grant R.E.’s petition,” Judge Edward Najam wrote for the appellate court. “The trial court was actually aware of our opinion in (In re Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014)), as R.E. explicitly cited it to the court on multiple occasions. The trial court had no discretion to simply disregard our opinions.”

It therefore found the trial court erred as a matter of law in requiring R.E. to produce medical evidence of an actual physical change to his body and remanded with instructions for the trial court to grant R.E.’s petition without further delay.

Additionally, it found the trial court unreasonably refused to seal R.E.’s court records against the appellate court’s “unambiguous precedent” in In re A.L., 81 N.E.3d 283 (Ind. Ct. App. 2017) and In re the Name Change of M.E.B., 126 N.E.3d 932, 936 (Ind. Ct. App. 2019).

“Here, the trial court made the same errors that we reversed in In re A.L. and in In re M.E.B. when the court demanded that R.E. present some evidence of actual or imminent harm from the publication of his petition and the open court proceedings. Administrative Rule 9 requires no such evidence,” the appellate court wrote, reversing and remanding with instructions that R.E.’s case remain sealed.

Lastly, the appellate court found R.E. was treated inappropriately and without the respect expected from judicial officers when the trial court did not use R.E.’s preferred pronoun of “he/his.”

“Unfortunately, this is not the first such occasion we have had to publicly admonish one of our trial courts for such derision,” Najam admonished. “The court refused to use R.E.’s preferred pronoun, not only making it a point to use the incorrect pronoun ‘she’ but also unacceptably referring to R.E. as ‘it’ and ‘whichever.’ The trial court also ridiculed R.E.’s appearance, comparing R.E. to an ‘aunt that has a significant amount of facial hair.’

“All parties in Indiana’s trial courts deserve to be treated with respect and dignity. The trial court’s treatment of R.E. here was disrespectful and inappropriate,” the appellate court wrote. “As we said in In re M.E.B., ‘[w]e would hope that the trial courts of this state would show far greater respect (as well as objectivity and impartiality) to all litigants appearing before them.’”

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March 17

Civil Tort — Alleged Sex Abuse/Compelled Arbitration

Jane Doe 1, as Legal Guardian of the Person and Estate of Jane Doe 2, an Incapacitated Adult v. Carmel Operator, LLC d/b/a Carmel Senior Living, et al.

19A-CT-2191

The legal guardian of an elderly woman housed at a Carmel assisted living facility could not convince the Indiana Court of Appeals that she should not be compelled to arbitration after bringing breach of contract and negligence claims against the facility for allegations of sex abuse.

After looking at new assisted living facilities for 77-year-old “Jane Doe II”, her legal guardian signed an agreement for Jane Doe to reside at the Carmel Senior Living, which contained a binding arbitration clause.

Months after Jane Doe’s move in date, her guardian filed a complaint of breach of contract and negligence against CSL, Spectrum Retirement Communities, and Michael Sullivan. She alleged that Sullivan, while an employee of CSL, sexually abused Jane Doe and that CSL/Spectrum should be held vicariously liable.

The Hamilton Superior Court ultimately issued an order compelling arbitration of the guardian’s claims, prompting her to appeal. Although the Indiana Court of Appeals found the language of the arbitration agreement to be plain, both guardian and the Indiana Trial Lawyers Association, acting as amicus curiae, asserted that the agreement was invalid because it was “both substantively and procedurally unconscionable.”

Specifically, guardian argued the agreement was substantively unconscionable because its terms requiring arbitration and prohibiting judicial review, requiring confidentiality of arbitration proceedings, and limiting damages were “oppressively one-sided and harsh.”

But finding her assertion to be that the arbitration agreement is an “adhesion contract,” the appellate court concluded that guardian pointed to no evidence indicating that she was the weaker party or that she was not in a position to “shop around for better terms.”

“In fact, the evidence shows that Guardian did investigate other facilities as possible placements for Resident. And, although Guardian now states that she did not understand that she was agreeing to confidentiality of arbitration and waiving Resident’s access to courts and claims for punitive and exemplary damages, she provides no explanation as to why she did not understand the clear, plain terms of the contract that did just that,” Judge L. Mark Bailey wrote for the appellate court.

“She does not establish — or even claim — that she had difficulty understanding the terms of the agreement or that she initialed and signed it unwillingly,” it continued.

Additionally, the appellate court found that guardian was given a sufficient amount of time to read the contract and that the agreement was not hidden in the contract as she suggested.

“Rather, as was the case with the nursing home arbitration agreement at issue in Sanford v. Castleton Health Care Ctr., 813 N.E.2d 411, 416 (Ind. Ct. App. 2004), the arbitration agreement here had its own heading in bold capital letters; it is immediately followed by a signature line requiring Guardian to provide her initials, which she did; and there is no evidence that Guardian was precluded from reading the agreement and asking questions about it,” the appellate court wrote.

Finally, it rejected amicus curiae’s argument that the predispute arbitration agreements for nursing home facilities such as the one in this case are unconscionable as against public policy, pointing out that the agreement was for Jane Doe II to live in an “assisted living and memory care apartments,” not a nursing home facility.

“In addition, because Count II of Guardian’s complaint raises allegations of substantially interdependent and concerted misconduct by both Certiphi (a nonsignatory) and CSL (a signatory), Guardian is equitably estopped from asserting that her claims against Certiphi are not subject to the broad language of her agreement to arbitrate ‘all claims,’” the appellate court concluded.

The case is Jane Doe 1, as Legal Guardian of the Person and Estate of Jane Doe 2, an Incapacitated Adult v. Carmel Operator, LLC d/b/a Carmel Senior Living, et al.,19A-CT-2191.

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March 18

Criminal — Motion to Suppress/Probable Cause

Andrece Tigner v. State of Indiana

19A-CR-1478

A visitor who was present during a home detention check that resulted in the discovery of illegal drugs and ended with him in handcuffs secured a reversal from the Indiana Court of Appeals.

The court found officers lacked probable cause to search the man and reversed his denied motion to suppress.

Andrece Tigner was visiting a man on home detention in January 2019 when police officers came to conduct a home visit and discovered a firearm and marijuana in the residence. Once a third officer arrived and conducted a protective sweep, a search warrant was granted and officers found several hundred grams of marijuana in a duffel bag, pills and scales.

When police officer Tiffany Wren was told two of the three men in the apartment were going to be arrested, she conducted a search incident to arrest of Tigner and found more than $1,000, pills and two key fobs. One of the key fobs led officers to a van outside, where a K9 alerted to the presence of drugs. A search of the van revealed marijuana, synthetic marijuana, crack cocaine, heroin, scales and plastic sandwich bags.

As a result, Tigner was charged with Level 2 felony dealing in cocaine; Level 3 felony possession of cocaine; Level 2 felony dealing in a narcotic drug; Level 4 felony possession of a narcotic drug; Level 6 felony dealing in a synthetic drug or synthetic drug lookalike substance; Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance; Level 6 felony possession of marijuana; and Level 6 felony possession of a narcotic drug.

The Marion Superior Court denied Tigner’s subsequent motion to suppress, but he successfully moved to certify for interlocutory appeal in Andrece Tigner v. State of Indiana, 19A-CR-1478.

In considering as dispositive whether the search of Tigner incident to his arrest was supported by probable cause as required by the Fourth Amendment, the Indiana Court of Appeals reversed in Tigner’s favor, finding the search to be unconstitutional because the officers lacked probable cause to arrest him.

The appellate court first rejected the state’s assertion that Tigner’s presence as a visitor of the apartment, combined with evidence discovered during the search of the residence, showed a fair probability that Tigner knew the apartment was regularly used for the consumption or sale of illegal drugs.

“However, the duffel bag containing hundreds of grams of marijuana was found inside a closet that a visitor would not be able to readily observe,” Judge Melissa May wrote for the appellate court. “The smell of burnt marijuana and a small amount of marijuana in plain view would denote to a visitor an isolated instance of drug use, but it does not show the apartment was being used on a continuous basis for the distribution or consumption of marijuana. Thus, the officers lacked probable cause to arrest Tigner for visiting a common nuisance at the time Officer Wren conducted her search incident to arrest.”

The COA further found Tigner did not constructively possess the marijuana found in plain view because he was not in proximity to it, there was no evidence the apartment was used for the manufacture of drugs, Tigner did not make any incriminating statements, and items he owned were not intermingled with contraband.

“Officer Wren’s search of Tigner incident to Tigner’s arrest violated Tigner’s Fourth Amendment rights against unlawful search and seizure,” the appellate panel concluded.

In a footnote, the appellate court also found that because the key fob in Tigner’s pocket was found in the search incident to an illegal arrest, “the drugs found as a result of the key fob being used should also be suppressed as fruit of the poisonous tree.”

The case was remanded for proceedings.

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March 25

Criminal — Child Abuse/Parental Discipline Privilege

Guadalupe Pava v. State of Indiana

19A-CR-716

An Indianapolis mother convicted of felony battery after striking her son with an electrical cord failed to convince the Indiana Court of Appeals that the charges against her could be defeated by the concept of parental privilege.

In Guadalupe Pava v. State of Indiana, 19A-CR-716, Guadalupe Pava was the mother of 9-year-old P.P. One day in June 2018, Irma Martinez, whose family lived with Pava’s, heard P.P. crying and saying he “wasn’t going to do it again.”

When Martinez went downstairs to investigate, she saw Pava striking P.P. on the back with an electrical cord. Pava struck P.P. four times in Martinez’s sight before Martinez was able to take the cord and shield P.P. The child later testified that his mother was angry at him and had struck him 10 times, and Pava testified that P.P. had been pinching his sister and had removed her dirty diaper without permission.

Pava herself began crying and told Martinez “she didn’t know why she had reacted that way.” Martinez went to P.P.’s school the next day to speak with a social worker, while P.P. showed a school employee the marks on his body.

The Indiana Department of Child Services was called then, and a case manager saw “extensive bruising and linear marks all over (P.P.’s) body.” The child was removed from the home and taken to a doctor, who found “[n]umerous, too many to count, red and bruise-like striped areas” on the his body, all less than 24 hours old.

Meanwhile, Pava admitted to both the case worker and to law enforcement that she had struck P.P. She was eventually convicted of two Level 5 felony battery offenses, and the Marion Superior Court entered judgment on a charge of Level 5 felony battery by a person of at least 18 years of age resulting in bodily injury to a person less than 14 years of age.

On appeal, Pava first argued Indiana’s battery statute was unconstitutionally vague as applied to her case and thus violated her rights under the Fifth Amendment and Article 1, Section 12 of the Indiana Constitution. Specifically, she argued that “under the facts of her case, and in conjunction with the parental privilege to discipline one’s child, ‘the decision of what is or isn’t reasonable corporal punishment’ under Indiana Code section 35-42-2-1 is too subjective, and she had no constitutionally acceptable guidance as to whether striking P.P. crossed the line into illegal battery.

“After reviewing the totality of the facts, circumstances, and evidence,” Senior Judge Carr Darden wrote, “we disagree for two reasons.”

The first reason, Darden wrote, is that I.C. 35-42-2-1 sets forth a scienter requirement that ensures a person “has fair notice as to what kind of conduct is punishment as battery.” And second, under Willis v. State, 888 N.E.2d 177 (Ind. 2008), the Indiana Supreme Court implemented a reasonableness standard for assessing the parental discipline privilege, he said.

“In Willis, the Court adopted the Restatement of the Law (Second) on Torts, which provides, in relevant part, that a ‘parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training, or education … ,’” Darden wrote.

“… Following the holding in (Morgan v. State, 22 N.E.3d 570 (Ind. 2014)), we conclude the objective reasonableness standard adopted in Willis would provide sufficient notice of what conduct crosses the line from mere discipline of a child to battery,” the senior judge continued, concluding Pava failed to establish unconstitutional, as-applied vagueness.

The appellate panel likewise rejected Pava’s argument that the state failed to present sufficient evidence to rebut her parental-discipline claim, finding she used “disproportionate and degrading force” against P.P.

“Pava did not stop striking P.P. until Martinez intervened. In addition, she did not try lesser forms of punishment, such as grounding P.P. or taking away privileges, let alone less severe forms of corporal punishment,” Darden concluded. “Pava indicated an awareness that her use of force was unreasonable. She cried after Martinez stopped her and stated she did not know why she struck P.P.”•