Davis v. Lakeside Motor Company Inc

Filing 89

OPINION AND ORDER denying 86 Motion to certify for interlocutory appeal. Signed by Judge William C Lee on 3/28/13. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JAMES DAVIS,
Plaintiff,
v.
LAKESIDE MOTOR COMPANY, INC.,
d/b/a HARBOR CHRYSLER JEEP DODGE,
Defendant.

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CIVIL NO. 3:10cv405

OPINION AND ORDER
This matter is before the court on a motion to certify for interlocutory appeal, filed by the
defendant, Lakeside Motor Company, Inc., d/b/a Harbor Chrysler Jeep Dodge (“Harbor”), on
February 11, 2013.
For the following reasons, the motion will be denied.
Discussion
On January 11, 2013, this court entered an order denying Harbor’s motion for summary
judgment and motions to strike. Harbor has now invoked 28 U.S.C. § 1292(b) which provides
for interlocutory appeals when the order in question “involves a controlling question of law as to
which there is a substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the litigation....”
The plaintiff, James Davis (“Davis”), has sued Harbor under Title VII claiming that he
was terminated because of his race (Count I) and that his termination was in retaliation for
complaining of workplace harassment and discrimination (Count II). Davis has also brought a
claim pursuant to 42 U.S.C. § 1981, alleging racial harassment (hostile work environment) and
discrimination (Count III). In its January 11 Order, this court held that Davis had presented

direct evidence of racial discrimination as Davis had presented evidence that he was repeatedly
called “nigger” in the workplace by his supervisor, Mike Nichols. Based on this evidence, the
court held that Davis was entitled to proceed to a jury.
In its present motion, Harbor contends that the court should not have denied summary
judgment because Davis had not presented any evidence that the derogatory comments were
related to his termination.1 However, as the court noted in the January 11 Order, Davis
complained about the racial comments to his supervisors at Harbor, and was terminated shortly
thereafter. Therefore, a jury could conclude that Nichols’ racial animosity infected the
employment decision. Smith v. Wilson, No. 11-2496 (7th Cir. Jan. 23, 2013); Brown v. East
Mississippi Electric Power Ass’n, 989 F.2d 858 (5th Cir. 1993)( “Pippen’s routine use of racial
slurs constitutes direct evidence that racial animus was a motivating factor in the contested
disciplinary decisions.”). “Direct evidence” is not “absolute evidence”. That is, it is not
evidence such that the jury is only permitted to arrive at one conclusion. If this were the case, a
plaintiff in a “direct evidence” case would be entitled to a grant of summary judgment (if the
plaintiff made such a motion). Rather, direct evidence is evidence directly showing that the
decisionmaker had a discriminatory animus.
Harbor insists that a trial would be fruitless in this case because it believes Davis does
not have any evidence that he was fired because of his race. However, assuming that Davis
presents his case at trial as a mixed-motive case, he need only show by a preponderance of the
evidence that racial animosity was a motivating factor in Harbor’s decision to terminate him. 42

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Harbor also requests interlocutory appeal on the issue of whether the court properly
denied Harbor’s motion to strike comparator evidence. Again, as Davis has direct evidence of
discrimination the comparator evidence is irrelevant and Harbor’s motion was properly denied.
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U.S.C. 2000e-2(m)2. Davis has evidence of racial animosity by his supervisor, which a
reasonable jury could conclude was a motivating factor in Davis’ termination. See Smith v.
Wilson, No. 11-2496, slip op. at 6 (7th Cir. Jan. 23, 2013)(“[E]vidence of [defendant’s] racism
certainly could have allowed a jury to attribute [plaintiff’s] exclusion solely to race...”).
In any event, it is clear that Harbor’s motion is an improper use of the interlocutory
appeal statute. The Seventh Circuit indicates that interlocutory appeals of a non-final order
under § 1292(b) are generally disfavored because they are an exception to the final judgment
rule, they interrupt the progress of a case and prolong its disposition, and an avalanche of
interlocutory appeals would result if every procedural ruling was subject to appellate review.
Wingerter v. Chester Quarry Co., 185 F.3d 657, 669 (7th Cir.1999). The Seventh Circuit has
explained the meaning of question of law under § 1292(b) as a question of the meaning of a
statutory or constitutional provision, regulation, or common law doctrine. Ahrenholz v. Bd of Tr.
of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000).
A “question of law” as used in § 1292(b) does not reference a question of “…whether the
party opposing summary judgment had raised a genuine issue of material fact…”. Bitler Inv.
Venture II, LLC v. Marathon Ashland Petroleum, LLC, 2012 WL 589292, *2 (N.D. Ind. Feb. 21,
2012). A pure question of law, appropriate for interlocutory appeal, would be “…something the
court of appeals could decide quickly and cleanly without having to study the record…”, and
“…an abstract legal issue rather than an issue of whether summary judgment should be

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42 U.S.C. 2000e-2(m) provides that: “Except as otherwise provided in this subchapter,
an unlawful employment practice is established when the complaining party demonstrates that
race, color, religion, sex, or national origin was a motivating factor for any employment practice,
even though other factors also motivated the practice.”
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granted…”. Bitler, 2012 WL 589292, at *2 (citing Ahrenholz, 219 F.3d at 677). A “…denial of
summary judgment is a paradigmatic example of an interlocutory order that normally is not
appealable…”. Bitler, 2012 WL 589292, at *2 (citing Ahrenholz, 219 F.3d at 676).
Accordingly, for the foregoing reasons, Harbor’s motion for interlocutory appeal will be
denied.
Conclusion
On the basis of the foregoing, Harbor’s motion to certify for interlocutory appeal [DE 86]
is hereby DENIED.

Entered: March 28, 2013.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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