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FOR PUBLICATION
ATTORNEY FOR APPELLANT: TIMOTHY W. WOODS Jones Obenchain, LLP ATTORNEY FOR APPELLEES DAWN BROOKS AND CHARMAINE WEATHERS:

SHAW R. FRIEDMAN Friedman & Associates, P.C.
LaPorte, Indiana ATTORNEY FOR APPELLEE: MICHIGAN CITY HUMAN RIGHTS COMMISSION: LAWRENCE W. ARNESS Michigan City, Indiana

IN THE COURT OF APPEALS OF INDIANA
FILTER SPECIALISTS, INC., Appellant-Petitioner, vs. DAWN BROOKS and CHARMAINE WEATHERS, Appellees-Respondents, and MICHIGAN CITY HUMAN RIGHTS COMMISSION. Appellee-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 46A05-0704-CV-203

APPEAL FROM THE LAPORTE CIRCUIT COURT The Honorable Thomas Alevizos, Judge Cause No. 46C01-0509-MI-290

December 28, 2007

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Filter Specialists, Inc., appeals from the trial court's order affirming the decision of the Michigan City Human Rights Commission (the "Commission"), which found Filter took adverse employment action against two employees, Dawn Brooks and Charmaine Weathers (referred to collectively as the "Employees"), based on their race. 1 Filter raises five issues, which we restate as: (1) whether Filter was subject to the Commission's jurisdiction; (2) whether the Commission's decision cannot stand based on the Employees' failure to introduce the local ordinance proscribing racial discrimination by employers; (3) whether the trial court abused its discretion in granting the Commission's motion to be joined as a party; (4) whether sufficient evidence supports the Commission's decision; and (5) whether the evidence supports the Commission's award of back pay. We conclude Filter has waived its jurisdictional argument, the Employee's failure to introduce the applicable ordinance is not fatal, and the trial court properly joined the Commission as a party. However, concluding the Commission's decision was not supported by sufficient evidence, we reverse. 2

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Both Employees are African-American. We therefore do not reach Filter's argument regarding the award of back pay.

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Facts and Procedural History On March 5, 2003, the Employees arrived at Filter at approximately 7:00 a.m., the time their shift began. Weathers, who was driving, stopped her car near one of the facility's entrances ("Entrance 1") and dropped off Brooks. Weathers then parked her car and proceeded into the facility via a different entrance ("Entrance 2"). Diana Wirtz, Filter's human resources manager, arrived at roughly the same time as the Employees and observed their arrival. Wirtz watched Weathers exit her car, walk toward Entrance 2, and pass two other Filter employees, James Cazy and LeRoy Shark, who were leaving the facility after finishing their shift. At the same time, Wirtz saw Eric Gordon, another Filter employee, exit the facility. Wirtz then entered the facility through Entrance 1 and waited by the time clock for Weathers, whom Wirtz testified did not arrive. At this point, Wirtz became suspicious, and checked Filter's time clock records. Filter's facility has two time clocks. One time clock ("Time Clock 1") is located near Entrance 1. The other ("Time Clock 2") is located near Entrance 2. Employees clock in by entering their employee number followed by the "enter" key. The clocks run on a sixtysecond cycle, so employees' clock-in times are shown in hours and minutes, but not seconds. Filter's records indicate that Brooks and Weathers both clocked in at 7:01 a.m. on Time Clock 1, that Cazy and Shark had clocked out at 7:00 a.m., and that Gordon had clocked out at 7:01 am. Based on her observations and the time clock records, Wirtz determined that Brooks had clocked in Weathers. Such action is a violation of Filter's conduct policy and, according to Filter's handbook, requires either a suspension or termination. Wirtz notified Mike Forbes, Filter's production manager and the Employees' 3

supervisor, that the Employees had violated Filter's time clock rule and recommended that the Employees be terminated. Forbes did not want to terminate the Employees, as he believed they were both good workers. Wirtz and Forbes took the matter to Bernie Faulkner, Filter's COO. After discussing the matter, the three decided not to terminate the Employees if they signed a "last chance agreement," in which they would admit the violation. Wirtz and Forbes met with the Employees separately and presented each of them with the "last chance agreement." Both Employees refused to sign the agreement and denied violating the timecard policy. Weathers claimed that she clocked herself in at Time Clock 1 at 7:01 a.m., and that she did not see Wirtz when she clocked in. She claimed that she entered the facility through Entrance 2, and then ran to Time Clock 1 to clock in. Brooks denied entering Weathers's employee number. Forbes then terminated both Employees. The Employees filed a complaint alleging employment discrimination with the Commission, which held a hearing on April 20, 2005. On August 18, 2005, the Commission entered its decision, finding that Filter had discriminated against the Employees based on their race. Along with its decision, the Commission entered the following relevant conclusions: 3 3. The Claimants in this case have met the burden of proof to establish a prima facie case of racial discrimination. Both claimants are African American women, who, according to the supervisor, Mr. Forbes, were good employees that the company did not want to lose. The testimony provided during the hearing in this matter further demonstrates that other Caucasian employees of the company who engage in far more egregious behavior than that the Claimants were accused of received far less severe forms of
The Commission entered numerous purported findings of fact. As discussed, infra, section IV. B., the vast majority of these purported findings merely recite various witnesses' testimony. As these "findings" are therefore not particularly useful, it is unnecessary to reproduce them here.
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discipline for their actions. In fact, Mr. Forbes testified that he did in fact have the choice of either suspending or terminated [sic] the Claimants in this matter, and he chose to terminate them. Finally, the Claimants have proven that the company did in fact take adverse employment action against them . . . . 4. In fact, as noted in Exhibits E and F to the hearing transcript in this case, the Michigan City Human Rights Department, following an investigation into the [C]laimants['] allegations of racial discrimination, did in fact find probable cause existed to support the Claimants['] charges, noting in their findings the lack of eyewitnesses to the alleged incident, the fact that the time clock records reflected other employees punching in at the same time on occasion and the lack of discipline for those employees.[4 ] *** Conclusion The testimony and evidence presented during the hearing clearly support the [C]laimants' position in this matter. The company has failed to provide sufficient evidence to support their termination of the claimants. The company itself admits that they have no witnesses who actually saw the alleged time clock incident, and also admits that with two time clocks in the facility, it is possible for more than one individual to have punched in at the same time, either utilizing the same time clock or separate clocks.[5 ] The company further admitted that neither of these employees had any history of fraud or misrepresentation during their tenure with the company, and in fact both adamantly denied this incident. In addition, neither claimant was in danger of being terminated due to point accumulation even had they both punched in late that day.[ 6 ] The company can offer no evidence or witnesses to support their [sic] position in this matter, and have completely failed to provide any legitimate, non-discriminatory reason for the Claimant's [sic] discharge. In fact, other employees received much less discipline for far greater offenses, including throwing tools at another employee and even walking off the job. Yet, the company chose to terminate the Claimants in this matter, for an alleged offense which no one witnessed and that the evidence fails to support, and which the Claimants' denied. It is clear from the evidence in this matter
None of the parties has submitted this report to this court. However, we point out that Filter did not discipline the Employees for clocking in at the same time. Filter disciplined the Employees based on its belief that Brooks clocked in Weathers. The fact that the records indicate the Employees clocked in at the same time was evidence of time card fraud, not the reason for discipline in and of itself. We point out that Filter's records indicate not only that Brooks and Weathers clocked in at the same time, but also that they both used the same time clock. See Appellant's App. at 145-46. Weathers also testified that she clocked in using the same time clock as Brooks used. We point out that neither employee was terminated for point accumulation, and instead were terminated for timecard fraud.
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that the stated reasons by the company for termination were pretextual and it was in fact the Claimant's [sic] race which was the motivating factor behind their discharge. Appellant's App. at 11-13. Filter filed a petition for review in the trial court. The Commission filed a motion to be joined as a party-defendant, and the trial granted this motion. After a hearing, the trial court affirmed the Commission's decision. Filter now appeals. Discussion and Decision I. The Employees' Failure to Introduce the Local Ordinance Filter argues that the Commission's decision cannot stand because the Employees did not introduce the Michigan City Human Rights Ordinance into evidence during the agency proceeding. Filter argues that this failure is fatal to the Employees' claim, as without the ordinance in evidence, the Employees failed to prove that Filter violated the ordinance's terms. In making this argument, Filter relies on caselaw holding that a court will not take judicial notice of a local ordinance, and that a party must instead introduce evidence of the ordinance's existence and content. See Gonon v. State, 579 N.E.2d 614, 614 (Ind. Ct. App. 1991) ("It is well-settled law in Indiana that ordinances cannot be the subject of judicial notice."); Maish v. Town of Schererville, 486 N.E.2d 1, 1 (Ind. Ct. App. 1985) ("In Indiana the courts may not take judicial notice of municipal ordinances. They are subject to proof."). However, the cases are no longer good law, as they were all decided before 1994, when our supreme court adopted Indiana Rule of Evidence 201(b), which indicates, "[a] court may take judicial notice of . . . ordinances of municipalities." See also City of Crown Point v. Misty Woods Props., LLC, 864 N.E.2d 1069, 1074 n.2 (Ind. Ct. App. 2007) (taking judicial notice 6

of a municipal ordinance). Filter recognizes this rule, 7 but argues that "[t]o prove an ordinance by judicial notice, it must be brought to the attention of the trier of fact during the hearing." Appellant's Br. at 13. This statement is incorrect for two reasons. First, the rule provides that a court may take judicial notice at any point, including on appeal. See Ind. Evid. Rule 201(f); Journal Gazette Co., Inc. v. Bandido's, Inc., 712 N.E.2d 446, 460 n.20 (Ind. 1999) (taking "judicial notice that the words `rats' and `rodents' are frequently used interchangeably"), cert. denied, 528 U.S. 1005 (1999); Stewart v. State, 688 N.E.2d 1254, 1258 (Ind. 1997) (taking judicial notice of a Kentucky statute even though the matter was not discussed at trial). Second, the rule provides that "[a] court may take judicial notice, whether requested or not." Ind. Evid. Rule 201(c). Although no party has requested this court to take judicial notice of the ordinance, 8 we elect to use our discretion to do so at this time.9 Because we take judicial notice of the ordinance, the Employee's failure to introduce it is of no effect. II. The Commission's Jurisdiction Filter argues that the Employees failed to prove Filter was subject to the
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Neither the Commission nor the Employees cite this rule in its brief.

We note that had the Employees requested this court or the trial court to take judicial notice of the ordinance and supplied the ordinance, this court or the trial court would have been required to take judicial notice. See Ind. Evid. Rule 201(d). We recognize Indiana Evidence Rule 201(e), which states: A party is entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. We can think of no reason why taking judicial notice of the ordinance would be improper or cause Filter any unfair prejudice, as Filter was clearly aware of the ordinance and its terms. See Appellant's App. at 102 (Filter's attorney stating that his "reading of your ordinance indicates you only need five commissioners for this hearing"). Were we affirming the Commission's decision,
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Commission's jurisdiction, as "[t]here was no evidence introduced at the administrative hearing establishing that Filter is located within the territorial jurisdiction of Michigan City and that is a fatal omission as shown by a long line of controlling precedent." Appellant's Br. at 14. Filter argues that the trial court therefore should have reversed the Commission's decision. We disagree. First, the cases cited by Filter are wholly distinguishable, as they all involve a party's failure to introduce evidence of location when such location was a critical and disputed fact going to the merits of a case, and not a claim of lack of jurisdiction. See Town of Windfall City v. State ex rel. Wood, 174 Ind. 311, 315, 92 N.E. 57, 58 (1910) (noting that the court was unable to take judicial notice of the exact location of a parcel of land in a suit involving a petition to disannex that land); Grusenmeyer v. City of Logansport, 76 Ind. 549, 552 (Ind. 1881) (where the city of Logansport objected to a petition to incorporate the Town of Taberville on the basis that the territory described in the petition was part of Logansport, the court refused to take judicial notice of the fact that the territory was already incorporated into the city of Logansport); Ritz v. Ind. and Ohio R.R., Inc., 632 N.E.2d 769, 774-75 (Ind. Ct. App. 1994) (refusing to take judicial notice of a canal's exact location in a suit to quiet title), trans. denied; Halstead v. City of Brazil, 83 Ind. App. 53, 56-57, 147 N.E. 629, 630 (1925) (in an action to enjoin the city from condemning a parcel of land, the court refused to take judicial notice that the land was outside the city's limits); Pittsburgh, C., C. & St. L. R.R. Co. v. Philpott, 75 Ind. App. 59, 63, 127 N.E. 827, 828 (1920) (whether accident occurred on

Filter would be allowed to put forth a good faith argument regarding the impropriety of this court taking judicial notice in a petition for rehearing.

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public or private grounds was determinative of whether the defendant owed the plaintiff a duty). Here, Filter does not seriously dispute its location, and has presented no evidence that it is not located in Michigan City and therefore not subject to the Commission's jurisdiction. Cf. United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) (holding that trial court properly took judicial notice that a penitentiary was located within the territorial jurisdiction of United States and in the District of Kansas), cert. denied, 449 U.S. 863 (1980); Munster v. Grace, 829 N.E.2d 52, 57 (Ind. Ct. App. 2005) ("The defendant ultimately bears the burden of proving lack of personal jurisdiction by a preponderance of the evidence, unless the lack of jurisdiction is apparent on the face of the complaint."). Indeed, the only evidence in the record regarding Filter's location indicates that it is located in Michigan City. See Appellant's App. at 177 (letter from Wirtz indicating that Filter's address is 100 Anchor Road, Michigan City, IN). 10 Regardless of whether the Employees should have introduced evidence establishing Filter's location, Filter appeared at the hearing in front of the Commission without objection, and did not raise an issue as to the Commission's jurisdiction until the case was before the trial court. Therefore, Filter has waived the issue. See State v. Carmel Healthcare Mgmt., 660 N.E.2d 1379, 1283 (Ind. Ct. App. 1996), trans. denied; cf. Hill v. Ramey, 744 N.E.2d 509, 512 n.7 (Ind. Ct. App. 2001) ("A defendant can waive the lack of personal jurisdiction and submit himself to the jurisdiction of the court if he responds or appears and does not contest the lack of jurisdiction.").

We note that some residences or businesses may have a particular city's address without being located within that city's limits.

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III. The Commission as a Party The Commission filed a petition for joinder with the trial court under Indiana Trial Rule 19, which states: A person who is subject to service of process shall be joined as a party in the action if: (1) in his absence complete relief cannot be accorded among those already parties; or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (a) as a practical matter impair or impede his ability to protect that interest, or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. We review a trial court's decision to grant a party's motion for joinder for an abuse of discretion. Rollins Burdick Hunter of Utah, Inc., v. Bd. of Trustees of Ball State Univ., 665 N.E.2d 914, 920 (Ind. Ct. App. 1996). The trial court granted the Commission's motion, stating that the Commission "should be joined as a party Defendant so that [it] may answer these allegations [that its decision was arbitrary, capricious, and an abuse of discretion]." Appellant's App. at 34. Filter argues that the trial court improperly granted the Commission's petition for joinder, as the Commission was "akin to a Trial Court," and "does not meet any of the criteria for standing." Appellant's Brief at 44. We initially note that Filter has failed to explain how the Commission's joinder to this suit has caused Filter any prejudice, and has failed to request any relief based on the alleged improper joinder. It is clear that, even if the joinder was improper, dismissal of the suit is not the remedy. See Ind. Trial Rule 21(A) ("Misjoinder of parties is not a ground for dismissal

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of an action."); McCoy v. Like, 511 N.E.2d 501, 506-07 (Ind. Ct. App. 1987), trans. denied. Instead, we would merely dismiss the Commission as a party and review the issues with regard to Filter and the Employees. See Hackin v. Lockwood, 361 F.2d 499, 501 (9th Cir. 1966) ("[W]e see no reason that such improper joinder should prevent our review of the matter as to the proper parties."), cert. denied, 385 U.S. 960 (1966). Despite Filter's inability to identify any prejudice it suffered as a result of the joinder, we will address the merits to clarify that in cases such as this, local civil rights commissions are proper parties in the trial court and on appeal. Indiana statute permits any city, town, or county to adopt an ordinance establishing a commission to advance Indiana's public policy of providing Indiana citizens with equal employment opportunity without regard to their race, religion, color, sex, disability, national origin, or ancestry. See Ind. Code

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