A TTORNEY FOR A PPELLANT A TTORNEY FOR A PPELLEE Robert O. Vegeler William P. Kealey Vegeler Law Office LLC Stuart & Branigin LLP Fort Wayne, Indiana Lafayette, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 02S03

- 1604

- PL

- 201

A DAM G AFF , Appellant

- Plaintiff
,

v.

I NDIANA

- P URDUE U NIVERSITY OF F ORT W AYNE , Ap pellee

- Defendant

.

_________________________________ Appeal from t he 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 employment termination discrimination case. We grant transfer to clarify the applicat ion 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

cons titut ional 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). G aff v. Indiana

- Purdue Univ. of Fort Wayne
, 45 N.E.3d2 458, 460 (Ind. Ct. App. 2015). With respect to the federal and st ate 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 Appeals noted language from Indiana Civil Rights Commission v. Culver Educationa l 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)

. T he Court of Appeals in Gaff acknowledg ed that " IPFW is the party who moved for summary judgment," 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 Cou rt 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 pr ocedure . . . diverges from federal su mmary 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 established : The initial burden is on the summary

- judgment movant to demonstrate the absence of any genuine issue of fa ct as to a determinative issue, at which point the burd en shifts to the

non

- movant to come forward with contrary evidence showing an issue for the trier of fact. And a lthough 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 Div ision , 670 N.E.2d 64 (Ind. Ct. App. 1996), and Elliott v. Sterling M anage ment 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 judgm ent jurisprudence. We thus disapprove of the analysis employed in Elliott

.3the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not impr operly denied his day i n 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) ; Wi nkler 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 appellate challenge to summary judgment, de novo review applies, with the reviewing court " applying 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 determined 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 adjudica ting civil RICO claims will . . . be guided by federal court interpretations of the relevant federal criminal st atutes, just as federal courts sitting in diversity are guided 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 thi s case Indiana procedura l
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 proced ural law of the forum and the substantive law of the jurisdiction originating the claim ); Brill v. Regent Comm c'ns. , In c. , 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 for um state applies to procedural issues

. ") trans. denied

. Thus,

w hile 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 jurisprude nce

.

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-4 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 action; and (3) a causal link be tween the two." Gaff , 45 N.E.3d at 465.

With respect to the retaliation claim i n this case, according to the parties' Agreed Statement of Material Facts, the plaintiff's Charge of Discrimination filed May 1, 2013 alleged that he had been "harassed, dis criminated 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 gend er (male), sexual orientation and [was] retaliated against . . . ," and that his supervisor "retaliated against him" due to reports by a co

- employee about the plaintiff's "b ehavior toward" the co

- employee. I d. at 93 ; Appellee's App'x at 163

- 64

.

IPFW a rgues that it is entitled to summary judgment because the plaintiff "cannot sufficiently establish a prima facie case of retaliation." Appellee's Br. at 30. IPFW contends tha t 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 establ ish 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 complained to his supervisor that his co

- worker called him derogator y names related to his weight and sexual orientation. These complaints are not indicative of discrimination that occurred because 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 summary5 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 Title 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.