*1 of the wit- tially by the demeanor affected
ness. discriminatory allegedly evaluating
stаtements, should consider wheth- a court (1) by made were
er the statements: (2)
decision-maker; related to the decision- (8) more than mere-
making process; were remarks; isolated
ly vague, ambiguous or they proximate whether were act Peters v.
time to the of termination. (6th Co., 456, 478
Lincoln Elec. 285 F.8d
Cir.2002). case, In this the statements managers made one of the who
were pro- charge placement
was in during the consolidation. The
motions that the statements
Hearing Officer found by Tuohy and the statistical evidence
made I
supported alleged discrimination. statements, coupled
believe these evidence, sufficiently are
the statistical
probative to allow a fact finder to believe employer made statements motive, discriminatory
with a and treated younger supervisors favorably. more
Particularly ultimately on issues boil credibility,
down to an assessment of findings
should defer to the factual Officer,
Hearing adopted by which were agency.
the administrative RUCKER, J., concurs.
.
In the Matter Honorable James
DANIKOLAS, the Lake
Superior Court, Division Civil
No. 45S00-0403-JD-126.
Supreme of Indiana. Court
6,Dec. 2005. *3 Point, Giorgi,
Andrew Stanley Crown W. Jablonski, Merrillville, for Hon. James Danikolas. Babcock,
Meg Maguire, W. James India- napolis, for the Commission on Judicial Qualifications.
JUDICIAL DISCIPLINARY ACTION PER CURIAM.
The Indiana Commission on Judicial ("Commission") Qualifications has filed a disciplinary against action this Court Respondent, the Honorable James Danikolas, Judge Superior of the Lake Court, ("Judge Civil Division 3 Daniko- las"). Article Section of the Indiana and Indiana Constitution Admission and Discipline give original Rule 25 this Court jurisdiction over this matter. charged Judge
The Commission Daniko- 1, 2, 2(B), las with violating Canons 3(C)(1) 3(B)(2), and of the Code of Judicial by discharging Conduct Kris Costa Sake- Sakelaris") ("Magistrate laris from em- ployment Superior Mag- as a Lake Court istrate retaliation for testimony she The court reduced this amount to a judg- provided during previous disciplinary ment. matter brought against Judge Danikolas. eventually Wife initiated proceedings present matter was tried before three supplemental, saying husband had paid Indiana judges trial court appointed to nothing on judgment. Magistrate Sak- serve as masters this proceeding.1 See elaris conducted a hearing in June Ind. Admission & Discipline Rule after which she ordered husband to pro- 25(VIID(I). trial, Following the the mas lawyer vide wife's with documentation "Report ters filed their of Findings of returns, about income tax an insurance Fact, Law, Conсlusions of and Recommen policy, and debt on a vehicle. She also (hereinafter *4 dation" Report") "Masters' him begin ordered making payments Court,
with this provided by as Admission per month. Judge $300 Danikolas coun- 25(VIII)N(N)(1). and Discipline Rule ter-signed the order. generally See In re Thereafter, the Commission filed its Ree- Damikolas, (Ind.2003) 788 N.E2d ommendation; Judge Danikolas filed a (hereinafter "). I "Danikolas Review, Verified Petition for Response to later, Several months sought wife a the con- Recommendation, Commission's and citation, tempt alleging Brief; that husband and had the Commission filed a Reply. provided neither any of the financial infor- tried, The matter briefed, has been fully mation nor paid the monthly amounts or- by and reviewed this Court. Having con 31, 2001, dered. January On Magistrate sidered the evidence and submissions of Sakelaris heard arguments evidence and parties, the along with the Masters' Re by counsel for parties both on these port, we concur with the masters that the claims. She found husband in contempt Commission has proven by clear and con non-payment and for violating the oth- vincing evidence that parts er of the earlier order. She held judicial committed Further, misconduct. him in contempt and him ordered incarcer- we concur in and adopt the masters' ree- ated, subject to an escrow bond. Judge ommendation Judge that Danikolas be sus counter-signed Danikolas this order as pended sixty days pay. without well. Background Factual later, days Five Judge signed Danikolas The instant case traces its beginning to a form countermanding order the con 2002 and during which the Commis- tempt order. judge As the agreed, later investigated sion prosecuted judicial a someone attorney's husband's office disciplinary prоceeding alleging Judge that supplied him with information about the parte entered an ex order in a case and faxed to the court the release marital dissolution case. The Supe- Lake signed order. He it without listening to rior Court had dissolved the marriage tapes or reviewing any transcripts of ("husband") ("wife") J.D. the trial and notifying without M.D. wife's law at which time $88,400 husband owed in yer or giving lawyer her a chance to res pond.2 spousal maintenance and child support.
1. The masters in this matter were the Honor- Superior of the Marion express Court. We Scopelitis, able Judge Michael P. St. appreciation gratitude our judges to these for their commendable service in this matter. Court; Joseph Superior Lynn the Honorable Murray, Court; Judge of the Howard Circuit stipula- Danikolas made these factual Shaheed, and the Honorable David A. tions in a Statement of Circumstances is? boss prompt that realize who action parte ex Sakelaris]
It was for?" she works in Damikolas realize who complaint she Doesn't disciplinary ed attorney, with Danikolas's I. thought Whatever Sake- deposed judge present, con aside the day he set on the he knew proceeding disciplinary in the laris for use un- basis of only on the he knew tempt deposi During I. to Damikolas that led losing supplied information sworn December tion, on conducted firm, upon acted information law party's repeatedly counsel Danikolas's had won who affording party ad Sakelaris sought from much occurring it was even notice at trial had been contempt order mission heard. Whether a chance to be less decision light of our entered improperly evidentiary in the proven and the facts law White, on v. in Cowart sup hеaring before (Ind.1999). hadWe reh'g, 716 N.E.2d not at contempt was finding of ported cases in Cowart observed "[mlany current I or of the of Danikolas the heart used may be contempt state proceeding3 judicial disciplinary party pay ordering one a decree enforce way: it this put masters money." Id. a fixed sum the other *5 Janu- not Ms. Sakelaris' or Whether 581. or 31, Cowart order violated ary to neither relevant law was any other ques- this line purpose of The initial pro- disciplinary prior Judge Danikolas' acknowledged, Danikolas tioning, Judge to this one. it ceeding nor is relevant his decision justification for provide was to illegal, was if order Even Ms. Sakelaris' reversing the parte order to enter the ex commu- justify parte the ex however, it could not Sakelaris, contempt. notify oppos- the to nication and failure admission the desired provide not would validity of think, that occurred. ing party she did ultimately stated pro- to is not relevant that order shown opinion the light Cowart even nothing to do it has ceeding because different- her, have ruled that she would to fired Judge Danikolas reason with the deposition, in the point At ly. sоme did not Ms. Sakelaris. up his hands attorney threw Danikolas's entered she Ms. Sakelaris because fire the room. Out- Danikolas left may not may it or or because that order angrily room, Judge Danikolas side knowledge of the her reflected on have court Magistrate Sakelaris's to commented say what she would but because alia, law [Magistrate "Doesn't inter reporter, Depending on at 446 n. 3. Id. ion." Discipline ten- Agreement Conditional evidence, history, id. at and the pleadings, I. See the case Court in Danikolas dered to this con- variety grounds in which 688. there are аp- may legally be tempt and incarceration then, Now, has asserted Danikolas 3. as as, hypothetical, offer one propriate, such to husband, right was to free strongly that he supple- proceedings being pay in ordered to course, opinion in our on Cowart. Of based mental, money pay, and having plenty to authority decision the earlier cited as Cowart know now what refusing We do not to do so. (Ind.1993), Pettit, Pettit v. ability to was about husband's evidence contempt available was we held that in which (not provide his refusal pay to mention judg- arrearages reduced support child on ordered), did and neither various documents ment, unemancipated respect of "at least in day set aside the he on Danikolas children," was whether it declared that contempt of the at the close order entered emancipa- arrearages after to collect available hearing. opin- "render no was one on which tion attorneys say wanted her to during that she problem "[had] no with the reas- her deposition. signment retaliation for jury Then, trials." on 1, perceived May 2008, disloyalty and her failure to wаrning or ex- planation, Judge "fall on her sword" for the notified judge, Magis- he trate Sakelaris that she would fired her and be dis- up then made fallacious charged 2,May effective excuses to cover up the real reason for her termination. Sometime after the discharge, Attorney (Masters' Michael Davis saw 32, Rep. at Finding of Fact No. courthouse and asked what
158.) had happened to Magistrate Sakelaris. According to Mr. Judge Danikolas testified in this case Davis, Judge Danikolas stated something point at the he left the of, to the effect got "You've to have people deposition spoke Sake- who loyal you, are [people] you trust." laris's court reporter, he was "concerned Judge Danikolas did not mention anything employee [he] had an who didn't know to Attorney Davis about losing confidence (Comm'n law." p. Exh. I1. 17- in Magistrate Sakelaris's legal abilities or 19.) The three masters who heard the competence as a magistrate. evidence for specifically us concluded that 7, 2003, On June Magistrate Sakelaris his comments were inconsistent with a filed with the request Commission a concern that she did nоt know the law and investigation against Judge Danikolas, al- rather were consistent "a concern leging Judge Danikolas had discharged that she had not adequately supported his her in retaliation for deposition testi- (Masters' defense." Rep. at Finding of mony in Danikolas I. On June *6 37.) Fact No. As the masters further the Commission sent Judge Danikolas a found, "Judge subsequent Danikolas'[s] Notice of Investigation in which the Com- conduct and activities to relating Ms. Sake- Danikolas, mission asked Judge alia, inter laris were as a result Judge Danikolas' provide to every basis for his decision to anger and frustration with Ms. Sakelaris' discharge Magistrate Sakelaris. provide (Id. failure to helpful testimony." responded Danikolas that he discharged 31, 155.) at Finding of Fact No. her because "he did not have confidence in Judge Danikolas's actions after the de- ability her perform to the tasks required." position support the masters' conclusions. Specifically, he stated that following Mag- spoke never Magis- to istrate deposition, Sakelaris's he "deter- trate any Sakelaris about problems or is- mined that he could no longer counter sign sues he had with the performance of her [sic] orders Sakelaris'[s] with- duties generally, with her statements dur- out reservation" because he could not ing the deposition specifically, or con- "conduct his hearings and monitor her cern he had about his ability to in hearings trust the order to make sure that he is legal substance of her counter-signing orders. He legally [sic] also did or- correct der." judicial curtail her duties in any way. Instead, February 12, 2003, on eight On March the Commission filed weeks after deposition, assigned he all formal disciplinary charges against Judge scheduled Civil Division jury trials to Danikolas, allеging he violated the Code of Magistrate Sakelaris, which amounted to Judicial Conduct discharging Magis- approximately 20-30 scheduled trials. trate Sakelaris in retaliation for pro- her following day, Magistrate Sakelaris viding truthful but unhelpful deposition responded in writing Danikolas testimony in Damikolas I. During the dis- for reasons Danikolas's stated case, found present covery phase were under interrogatories discharging answered without to state him for asked the real reason up oath. One to cover pretexts discharging reason each exception dis- "pеrceived namely her discharge, her response Unlike Sakelaris. 'fall on failure to and her loyalty by the Com- posed question the same during deposi- judge" sword' he 2003, this time on June mission (See at Rep. I. Masters' Damikolas tion in (1) initial Her reasons: numerous listed 158.) concur No. We of Fact Finding (2) contract; employment an on insistence so, note doing we findings. in their assignment accept initial refusal Her cases, sit not judicial discipline cases, subse- relations non-domestic court rather as the but appeal a court of as knowledge alleged on recusals based quent final) (and jurisdiction. See original (8) local attendance Her parties; 4; Disc. R. § Admis. art. Ind. Const. of the court representative aas seminars Therefore, formally 25(I)(A). we do (4) knowledge; Judge Danikolas's "standard appellate any deferential employ "my court" when phrase Her use findings and masters' to the (5) of review" experi- lack of Her public; speaking (6) trials; "oper- them de Her review jury and instead handling conclusions ence 25(VIID)(P)@). separate R. it Disc. as if was See Admis. her court at[ing] novo. keeping statistics 3 and Division] [Civil tes- involving conflicting However, in cases (7) anyone"; with not shared were assessments, credibility timony and "showed in which she deposition, Her judge, are best masters, trial court like a pro- the collection unfamiliar she was wit- demeanor of to assess the positioned concede, face of in the and refused cess" credibility. Ac- judge their nesses actions that her "her precedent, applicable special give cases we in such cordingly, law"; Her re- contrary to were findings, particular- the masters' weight to at a time certain cases failure to set peated unanimous. findings are their ly when setting instructions, than rather per his Daniko- time. same all at the them case turns present The heart of testified, to an inter- in an answer las also *7 Judge truly motivated on what discharge to he decided that rogatory, This Magistrate Sakelaris. discharge to "[slhortly after lis- Magistrate signifi necessarily involves determination on December deposition tening to her mas by the credibility assessments cant 2002." did concerning what ters matter, Judge hearing of At the do, and and did not say, not did and did same essentially repeated these Danikolas their find Accordingly, we review why. Magistrate discharging reasons alleged conclusions, were unani which ings provid- not explanation for His Sakelaris. in point mous, unique vantage ini- their discharge bases when these ing all of to do so by the Commission tially asked mind. was, very it diffi- "Life makes
June
clear and con-
First,
masters found
everything, you
up with
coming
cult with
har-
vincing evidence
know."
Magis-
retaliatory animus toward
bored
Regard
The
to "fall on
Findings
To
her failure
With
trate Sakelaris
Charged Misconduct
Specifi-
deposition.
during the
her sword"
depo-
of
purpose
cally, he admitted
masters,
reviewing the
after
justifica-
provide
was to
counsel,
questioning
sition
arguments
and the
evidence
disciplinary
tion
against
case
him for
commencement of
formal proceedings
his decision to enter an
parte
him,
ex
order.
against
he was asked in an interroga
Magistrate
When
Sakelaris did
provide
tory to "[sltate without exception each of
testimony,
deposition
he left the
angr-
[his] reasons for terminating Ms. Sakelar-
ily stating Magistrate
Sakelaris's court
time, however,
is." This
produced
he
reporter,
[Magistrate
"Doesn't
Sakelaris]
litany
alleged grievances
against Magis
realize who her boss is? Dоesn't she real-
trate Sakelaris that purportedly motivated
ize who she works for?" He admitted that
the decision.
only
His
excuse for the dis
discharge
decision to
her was made
crepancy between the two recitations was
shortly after the conclusion
deposi-
"(Wife
makes it very difficult with
tion, even though he did
actually
dis-
coming up with everything, you know."
charge her until over four months later. An employer's shifting reasons for a dis
Further,
sometime after
Sake-
charge decision can constitute cireumstan-
discharge
laris's
he told a disinterested
See,
tial
pretext.
еvidence of
e.g., Cleve
attorney something to the effect that he
land v.
Network,
Home Shopping
369 F.3d
discharged
had
"[ylou've got
because
(11th
Cir.2004);
1194-95
Young v.
people
have
loyal
you,
who are
[peo-
Co.,
Warner-Jenkinson
152 F.3d
ple] you
evidence,
trust." From this
(8th Cir.1998);
Thurman
v. Yellow
concur with the
masters that
Dani-
Inc.,
Freight Sys.,
90 F.3d
kolas
retaliatory
harbored
animus toward
amended on denial
reh'g,
Second, the masters found clear and convincing evidence that Dani- We also find the masters' exhaus kolas, in responding to allegations tive, detailed review of each of Dan- him, against provided non-retaliatory false ikolas's alleged discharge reasons to be reasons for the discharge to up cover persuasive, showing those reasons either retaliatory motive. Our review of the evi fact; or, true, had no basis in although dence confirms the findings masters' really did not discharge motivate the be pretext. they cause were relatively benign, never
We note that pro mentioned Sakelaris as "shifting" vided reasons points correction, in need of and either *8 discharge. Sakelaris's by When asked happened the long discharge before her and just Commission a few weeks after the never again happened resurfaced or closer discharge in time but were affirmatively resolved "[plrovide every basis" for the decision, discharge Judge Danikolas men before the discharge decision was made. only tioned alleged loss of confidence in See Reeves v. Plumbing Sanderson Prods. legal judicial and Inc., abilities that resulted 2097, 530 U.S. 120 S.Ct. 147 20, the December 2002 deposition. L.Ed.2d 105 (noting that false rea Presumably, this articulation was made sons for an adverse employment action during the period when time the reasons create a reasonable inference that the em discharge would have ployer been freshest dissembling is uр to cover an im in year later, his mind. Over a motive); after the proper discharge Dale v. J.G. 430 1 and Canons justice, and violate tion of (Ind.Ct. Inc.,
Bowers, 369 2(A) demonstrated of Conduct. is of the Code Judicial (stating pretext App.1999) by the offered reasons alleged the when Danikolas's Specifically, or fact no basis either have employer Magistrate Sake- discharge of retaliatory reasons for actual to be the found not are and an misconduct constitutes willful laris restate We will discharge). judicial office power of his abuse al- as to each findings specific masters' vendetta, prejudi and is private a advance here, state but instead leged reason justice. As we to the administration cial evidence analysis of the record our own Boles, N.E.2d in In re noted masters found. what the confirmed (Ind.1990), judicial power "The use of is a serious of retaliation
as an instrument
Imposition
And
Conclusions
Conduct."
of Judicial
violation of
Code
Of Sanction
Buchanan, 100
In re
Wash.2d
also
See
(1983) (holding judge
396,
Accordingly, herein, the Respondent ment at If will. there is no definite or Danikolas, James Judge of Supe- the Lake ascertainable term employment, then Court, rior suspended is will, that office employment is and is presump pay for a period sixty days. tively time, terminable at any with or with The suspension gowill cause, into effect at a date out party2 either Wior v. An Danikolas makes no claim that the masters Qualifications The Commission on Judicial charged found him in violation of a violating Canon for which Can- Also, charged. although he was not 1, 2, 2(B), 3(B)(2), the ma- 3(C)(1) ons of the Code jority opinion say express does not so in of Judicial Conduct. It is unclear whether terms, implicitly it has concluded that "2" is a scrivener's error and the Commission findings support only of the masters a viola- actually "2(A)'. сharge intended to 2(A). tion of Canons 1 and event the masters concluded that Dani- 1, 2(A), 3(C)(1). kolas violated Canons dispute 2. There is no Sakelar- Court, papers And in his employee before this § is is an at will. See Ind.Code 33- *10 4932 are the masters findings of case? 172, Inc., 175 Industries, N.E.2d 669
chor point the masters As point. on this silent Indianapo City (Ind.1996); v. Speckhman of Sak- (Ind.1989). out, Danikolas fired 1189, 1192 lis, N.E.2d 540 say what his not she would "because elaris Agency, Ins. Kinser v. Sample See also say during her to attorneys wanted (Ind.Ct.App. 802, Inc., 805 700 N.E.2d 82, at Rep. & Ree. Masters' deposition." employee will 1998) an at (Employment however, contеxt, it is €158. Taken at party by either may be "terminated what reason, apparent no reason, or bad good time for Magistrate Sakelaris attorneys wanted all."). recog has This Court reason at appli understanding of say was that to employment to the exceptions nized three as a in error and may law have been poten is cable doctrine, only one of which at will for con incarceration her order recognized result have here. We tially applicable wrong illegal. or may have been tempt employ to the exception policy public a error acknowledge Testimony refusing to statutory if a clear at will doctrine ment true or being proven susceptible not is duty is contra right a or expression one's simply a statement It is false. have invoked example, we For vened. pro law does And Indiana position. employee an exception where public policy discharge in retalia from employee tect an com filing a worker's discharged for was different position a taking for tion claim, v. Central Frampton pensation Wior, See, 669 e.g., employer. that of her Co., Ind. 260 Gas Indiana dis right to N.E.2d wrongful no (1978) (statutorily conferred (finding at 177-78 supervisor fired employer claim), charge where compensation a worker's file a who filed employee to fire refusing for discharged for employee was an where claim). act, McCla worker's illegal compensation an to commit refusing Inc., Lines, Freight Remington v. nakhan essence, employee an discharging (Ind.1988) not to (duty N.E.2d disloyalty and perceived in retaliation employ illegal act for which an commit employee he wanted saying what liable). personally eе would be Daniko- during deposition, a say bounds of acting well within las was concluded that masters In this case the However, majority as the law. Indiana terminated Conduct of Judicial out the Code points of her because employment Sakelaris' to a are held judges makes clear testimony. Masters' deposition "truthful" is "The standard standard. higher charac at 128. Whether Rep. & Ree. conduct, not there statutory right particular duty or a and it is terized as [Clode deter which litigation, outcome obligated the deponent is that a question is no is a violation." or not there mines whether § 34- Ind.Code truthfully. See testify Wireman, (quoting Matter Op. at 431 ("Before every witness testifying, 45-1-2 1868, 1372 344, 351, 367 N.E.2d truth, 270 Ind. testify the shall be sworn truth."); (1977). would truth, nothing but That whole litigating a retal likely be unsuccessful ("The 30(C) officer before Trial Rule Ind. pre facts under the discharge claim iatory taken shall is to be deposition whom the Judge Dani- not absolve oath...."). here does sented But what witness on put the amI liability under the Code. kolas from in this testimony issue truthful is the ... this section appointed under magistrate appointed (concerning magistrates 33-45-11 judge by the until removed in office continues Superior the Lake 3 of divisions serves."). magistrate that the part, "A declaring in relevant Courts and *11 compelled agree thus that a sanction is However,
appropriate in I this case. dis-
agree suspension from office without sixty
pay days for is warranted. This punitive
is far too conduct other-
wise would merit no sanction whatsoever. my a public reprimand view is suffi-
cient. On this issue I respectfully dissent.
STATE of Indiana ex rel. INDIANA
STATE BAR ASSOCIATION At
torney General State
Indiana, Relators,
v.
Ludy DIAZ, Respondent.
No. 94S00-0312-MS-589.
Supreme Court of Indiana.
Dec.