concurring in part and dissenting in part
I agree with the majority that the trial court properly granted partial summary judgment in favor of the NEA and Beech-ing with regard to Levee’s claims of defamation per se and tortious interference with a business relationship. However, I respectfully dissent from the majority’s conclusion that the trial court erred in granting partial summary judgment in favor of the NEA and Beeching with regard to the claim of tortious interference with a contractual relationship. I also disagree with the majority that the trial court erred in granting judgment on the evidence in favor of the NEA and Beeching with regard to Levee’s claim of defamation per quod.
I. Tortious Interference Claims
First, I believe that this court is precluded from addressing the issue of tor-tious interference with a contractual relationship. Count III of Levee’s complaint, entitled “Interference with a Contractual Relationship,” provides in pertinent part that “Beeching, by his tortious conduct interfered with the business relationship which existed between Levee and her employer, SBCSC, as well as her relationship with the persons who reported her in her position as principal of Eggleston Elementary School.” R. 14. The majority opinion states that “Levee makes two separate claims, one that Beeching interfered with her contractual relationship with her employer and the other that Beeching interfered with her ‘business’ relationships with Eggleston teachers.” Op. at 218 n.l.
Indiana Trial Rule 8(F) provides that “[a]ll pleadings shall be so construed as to do substantial justice, lead to disposition on the merits, and avoid litigation on the merits.” Looking to the language of the complaint, I agree with the majority that the claims of tortious interference with a contractual relationship and tortious interference with a business relationship can be gleaned from Levee’s pleadings. The elements of tortious interference with a contractual relationship are: 1) the existence of a valid and enforceable contract; 2) defendant’s knowledge of the contract’s existence; 3) defendant’s intentional inducement of the breach of the contract; 4) the absence of justification; and 5) damages resulting therefrom. Fields v. Cummins Employees Fed. Credit Union, 540 N.E.2d 631, 640-41 (Ind.Ct.App.1989). The elements of a cause of action for tortious interference with a business relationship are the same as the elements for interference with a contract except that there is no requirement that a valid contract exist. Biggs v. Marsh, 446 N.E.2d 977, 983 (Ind.Ct.App.1983). However, an additional element is that the defendant acted illegally by his interference. Id.; See also Watson Rural Water Co. v. Indiana Cities Water Corp., 540 N.E.2d 131, 139 (Ind.Ct.App.1989), trans. denied. Essentially, the majority concluded that Levee’s complaint alleges both that the NEA and Beeching interfered with her contractual relationship of employment with SBCSC and her business relationship with the teachers who were under her direct supervision as principal of Eggleston school.
The NEA and Beeching in their Brief in Support of Motion For Summary Judgment specifically argue that they are entitled to partial summary judgment with regard to the torts of tortious interference with a contractual and business relationship. Thus, both Levee and the trial court were provided adequate notice of the basis of the NEA and Beeching’s motion for summary judgment. After reviewing the record, it appears that Levee did not argue the claim of tortious interference with a contractual relationship on summary judg*226ment.8 The trial court’s January 14, 1999 order only refers to the tort of tortious interference with a business relationship, failing to dispose of the claim of tortious interference with a contractual relationship.9 R. 275-282. Thus, the claim of tortious interference with a contractual relationship was still viable after partial summary judgment.
However, Levee failed to present any evidence at trial in support of the claim of tortious interference with a contractual relationship. During Levee’s case-in-chief, the only evidence introduced and argument presented at trial concerned her claim of defamation per quod by the NEA and Beeching. At the close of Levee’s case-in-chief, the NEA and Beeching moved for judgment on the evidence with regard to the claim of defamation per quod. The trial court later granted the motion in favor of the NEA and Beeching, discharging the jury. R. 346. Thus, Levee waived the claim of tortious interference with a contractual relationship at trial.10 Because Levee waived the tort of tortious interference with a contract at trial and failed to raise the issue on appeal, I believe that this court is precluded from addressing the merits of this tort claim on appeal.
II. Defamation Per Quod
Furthermore, I disagree with the majority’s conclusion that:
the trial court erroneously entered judgment on the evidence in favor of Beech-ing and the NEA. The record is replete with evidence that Beeching’s comments were a factor in Wilson’s decision to reduce Levee’s raise. Therefore, a question of material fact exists on the issue of proximate cause.
Op. at 224. In reaching its conclusion, the majority adopted the test for proximate *227cause articulated in Smith v. Beaty, 639 N.E.2d 1029 (Ind.Ct.App.1994), which provides that “[t]he essential question in determining proximate cause is not whether the defendant’s act is the only cause, but whether the act is one of the proximate causes as opposed to a remote cause.” Op. at 224 (citing Smith, 639 N.E.2d at 1034).
I acknowledge that the Smith test for proximate cause is appropriate for the majority of tort actions in Indiana. However, in the employment context, I believe that this test for proximate cause is inapplicable. This court in SSU Fed’n of Teachers, Local 4195 v. Board of Dir., Madison Area Educ. Special Serv. Unit, 656 N.E.2d 832, 835 (Ind.Ct.App.1995), looked to federal law and analyzed the causation standards for employment discrimination cases, ultimately determining that the “pretext” standard of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), controls rather than the “mixed motive” test of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).
The “mixed motive” analysis developed in Price Waterhouse requires the plaintiff to prove a prima facie case that the motivating factor was discriminatory. Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775. The burden then shifts to the defendant to prove that the discriminatory motive had no bearing on the negative employment decision. Id. The “pretext” standard utilized in McDonnell Douglas and Burdine requires the plaintiff to prove by a preponderance of the evidence a pri-ma facie case of discrimination. See Indiana Civil Rights Comm’n v. City of Muncie, 459 N.E.2d 411, 418 (Ind.Ct.App.1984). The burden of going forward then shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employer’s decision. Id. Then, the plaintiff must ultimately carry the burden to show that the employer’s proffered reason was not the true reason for the decision, but rather only a pretext. Id. at 419.
In the “mixed motive” case, the plaintiff need only show that the improper consideration played a part in the employer’s decision. Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775. The employer must then show that it was not a factor in the employment decision. Id. In contrast, the employee under the McDonnell Douglas and Burdine standard bears the ultimate burden of proving the improper reason was the true reason. Indiana Dep’t of Correction v. Indiana Civil Rights Comm’n, 486 N.E.2d 612, 617 (Ind.Ct.App.1985), trans. denied. This court, in SSU Fed’n of Teachers, Local 4195, found the proper test to be the pretext standard. SSU Fed’n of Teachers, Local 4195, 656 N.E.2d at 835. However, like that case, I believe the plaintiff herein does not succeed using either standard, despite the fact that the “mixed motive” test provides an easier opportunity for the plaintiff to succeed.
In the present case, Myrtle Wilson, the director of instruction for SBCSC, testified at trial that she conducted the 1995-96 performance evaluation of Levee which resulted in Levee receiving a good rating for purposes of merit pay. R. 660. Wilson further testified that if all of the grievances had not been filed against Levee, she probably would have given Levee an outstanding performance rating. R. 691. Moreover, Wilson stated that Beeching comments “contributed to [Levee’s] failure to get an outstanding rating” for the 1995-96 school year. R. 693.
After examining Wilson’s trial testimony, I agree with the majority that Beech-ing comments were a factor in Levee receiving only a good performance rating. However, the motivating factor in Wilson’s decision not to give Levee a outstanding rating appears to be the number of grievances filed against her by teachers under her direct supervision at Eggleston Elementary School. Using the Price Water-*228house standard for causation, Levee has not proven that Beeching’s comments were a “motivating factor” in Wilson’s employment decision, and therefore, even under that standard the burden never shifted to the employer. Likewise, Levee certainly never showed that the grievances were a pretext for an improper motive under the McDonnell Douglas and Burdine standard. I would affirm the trial court’s grant of judgment on the evidence in favor of the NEA and Beeching with regard to Levee’s claim of defamation per quod.
Based on the foregoing, I agree with the majority’s conclusion that the trial court properly granted partial summary judgment in favor of the NEA and Beeching with regard to Levee’s claims of defamation per se and tortious interference with a business relationship. However, I disagree with the majority’s holding that the trial court erred in granting partial summary judgment in favor of the NEA and Beeching with regard to the claim of tor-tious interference with a contractual relationship. I also disagree with the majority that the trial court erred in granting judgment on the evidence in favor of the NEA and Beeching with regard to Levee’s claim of defamation per quod.
.I note that the NEA and Beeching moved for partial summary judgment on two different occasions. The NEA and Beeching first moved for partial summary judgment on Levee’s claims of defamation per se and intentional infliction of emotional distress, a motion which the trial court later granted.,, R. 17-18, 155-59. Thereafter, the NEA and Beeching moved for partial summary judgment on the issue(s) contained in Count III of Levee's complaint. R. 160-68.
The moving parties were unclear which tort Levee was alleging in Count III: tor-tious interference with a contractual relationship or tortious interference with a business relationship, or both. See R. 163. The NEA and Beeching’s Brief In Support Of Motion For Summary Judgment provides in pertinent part that "[i]t is unclear which tort Levee is alleging in Count III of her Complaint.” R. 163. Consequently, the NEA and Beeching argued the merits of tortious interference with a contractual relationship and tortious interference with a business relationship in their Brief In Support Of Motion For Summary Judgment. R. 163-67. Levee, however, neither delineates nor argues the distinction between the two torts in either her complaint or Brief in Opposition to Defendant’s Motion for Summary Judgment. See R. 11-15, 137-54. Moreover, Levee only argues the merits of the tort of tortious interference with a business relationship in her Supplemental Brief And Response To Defendant’s Motion For Summary Judgment. R. 187-94. I believe that the tort of tortious interference with a contractual relationship was not contemplated by Levee during the pleading stage, and that she inadvertently gained the tort claim by the way in which her complaint was drafted. However, because of the liberal rules of notice pleading in Indiana, I have given Levee the benefit of the doubt that she intended to plead and argue the merits of both tort claims at trial. See T.R. 8(F).
. I note that Levee failed to raise the issue on appeal that the trial court’s January 14, 1999 order granted summary judgment in favor of the NEA and Beeching with regard to the claim of tortious interference with a contractual relationship, and that this action by the court constituted error. Issues not argued by an appellant in the appellate brief are waived on appeal. Indiana Appellate Rule 8.3(A)(7). Thus, we are precluded from addressing this issue on appeal.
. I note that Levee filed a Motion to Reconvene and Reconsider, which was later denied by the trial court. R. 345. In Levee's Supplemental Memorandum In Support Of Its Motion to Reconvene And Reconsider, she only argues the merits of her claim of defamation per quod; nothing is mentioned in her brief regarding the tort of tortious interference with a contractual relationship.