APPEAL FROM THE INDIANA STATE CIVIL RIGHTS COMMISSION. The Honorable Noell F. Allen, Administrative Law Judge. Docket No. EDra08010034.
ATTORNEY FOR APPELLANT: JOHN S. (JAY) MERCER, Mercer Belanger, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: FREDERICK S. BREMER, ICRC Staff Counsel, Civil Rights Commission, Indianapolis, Indiana.
BAKER, Judge. KIRSCH, J., and ROBB, J., concur.
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
with instructions to conduct a new hearing and issue a timely
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.
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 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 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?
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 ...