Cripe, Inc. v. Clark

834 N.E.2d 731, 23 I.E.R. Cas. (BNA) 952, 2005 Ind. App. LEXIS 1794, 2005 WL 2373563

• Court: Indiana Court of Appeals
• Decided: September 28, 2005
• Docket: 50A04-0502-CV-63
• Status: Published

Opinions

OPINION

BAILEY, Judge.

Case Summary

In this interlocutory appeal, Appellant, Defendant Cripe, Inc. d/b/a D.C. Garage Doors ("Cripe") appeals the trial court's denial of its motion to dismiss the complaint filed by James L. Clark ("Clark") for retaliatory discharge. We reverse and remand.

Issue

Cripe raises one issue, which we restate as whether the trial court erred by denying its motion to dismiss because Clark voluntarily terminated his employment with Cripe and, as a consequence, has failed to state a claim for retaliatory discharge upon which relief may be granted.

Facts and Procedural History

The relevant facts, as set forth in the complaint at issue, follow.. On or about January 29, 2002, Cripe hired Clark as an installer and service technician of garage doors. From the date of his hire, Clark-an at-will employee ¹-was supervised by Dennis Cripe ("Dennis") and Jim Brown ("Brown"). A few months after Clark began his employment with Cripe,² Dennis assigned him to drive a Chevrolet van. This van lacked operating turn signals, at least one brake light, operating warning-hazard lights, and an interior center rear-view mirror. The van also had severely worn tires and brakes and "loose exterior rear-view mirrors." Appellant's App. at 5. Clark informed Dennis and Brown of the defective condition of the Chevrolet van and was assured that necessary repairs would be made. Except for an attempted repair of the front brakes, however, no such repairs were completed. At some point, one of Clark's co-workers, who is neither skilled nor certified to make brake repairs, attempted to repair the van.

In June of 2008, Brown directed Clark to drive the Chevrolet van to the Cripe facility located in Knox, Indiana. Upon his arrival at the Knox facility, Clark was instructed to load the van with materials, the bulk of which exceeded the loading capacity of the vehicle Accordingly, Clark was required to drive a "F350 diesel duel-wheeled pick-up truck," with a trailer attached. Id. at 6. From a previous experience with this truck, Clark knew that its brakes had been defective. When Clark inquired about the present condition of the brakes, he was directed to drive the truck irrespective of whether the brakes had been repaired. In addition, the trailer that Clark was required to haul behind the truck had a flat tire, no operating harness for turn signals or brake lights, and a license plate that belonged to another vehicle. Before he departed from the Knox facility, Dennis advised Clark to "just be careful and don't drive fast." Id.

Because of the truck's faulty brakes, Clark was unable to safely stop the truck and trailer at the intersection of U.S. Highways 35 and 6 and, instead, the vehicles "veered onto the right-hand berm" and came to rest in an adjacent ditch. Id. After an unsuccessful attempt to use the in-cab radio, Clark continued driving the truck and trailer and encountered "several other near accidents (Le., near rear-end collisions with vehicles in front of the [truck] due to the defective brakes, and near rear-end collisions to the trailer from following vehicles due to the trailer's defective brake lights)." Id. at 7. Eventually, Clark returned the vehicles to the Knox facility and reported the hazardous conditions.

Approximately one week later, Clark was assigned to drive a "1996 G80 Chevrolet utility van" for a certain service job in Plymouth, Indiana. Id. This utility van had been serviced on numerous occasions for sudden losses of power. Notwithstanding the attempted repairs, however, Clark had noticed that "the same loss of power problem persisted." Id. Indeed, in June of 2008, while Clark was driving the utility van, it lost power and stalled in the middle of a busy intersection, nearly resulting in a severe collision with oncoming traffic.

Subsequent to this latter incident, Clark questioned Dennis about the safety of the motor vehicles that had been assigned to him, but Dennis "refused to provide safe vehicles to Clark." Id. at 8. In response, "Clark terminated his employment [with Cripe] on or about July 21, 2008." Id.

On October 20, 2004, Clark filed a complaint against Cripe alleging that he had been retaliatorily discharged. On November 3, 2004, Cripe filed a motion to dismiss Clark's complaint, pursuant to Indiana Trial Rule 12(B)(6). After conducting a hearing, the trial court entered an order denying Cripe's motion to dismiss, which it certified for interlocutory appeal on January 12, 2005. We accepted jurisdiction of this appeal on March 7, 2005. It is from the denial of its Rule 12(B)(6) motion to dismiss that Cripe now appeals.

Discussion and Decision

I. Standard of Review

On appeal, Cripe argues that the trial court erroneously denied its motion to dismiss the Complaint under Indiana Trial Rule 12(B)(6).³ The standard of review of a trial court's grant or denial of a motion to dismiss for failure to state a claim is de novo. Sims v. Beamer, 757 N.E.2d 1021, 1024 (Ind.Ct.App.2001). We do not defer at all to the trial court's decision because deciding a motion to dismiss based upon failure to state a claim involves a pure question of law. Id. That is, it does not require reference to extrinsic evidence, the drawing of inferences therefrom, nor the weighing of credibility for its disposition. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000). The grant or denial of a motion to dismiss turns solely on the legal sufficiency of the claim and does not require determinations of fact. Sims, 757 N.E.2d at 1024.

Because an Indiana Trial Rule 12(B)(6) motion to dismiss tests the legal sufficiency of a claim, and not the facts supporting it, a complaint may not be dismissed on the basis that it fails to state a claim upon which relief may be granted unless it appears to a certainty, on the face of such complaint, that the complaining party is not entitled to any relief. McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind.Ct.App.1999), trans. denied. In ruling upon a motion to dismiss for failure to state a claim, the trial court is required to view the complaint in a light most favorable to the nonmoving party, with every reasonable inference construed in the non-movant's favor. Id. The trial court may only look to the complaint, and well-pleaded material must be taken as admitted. Id.; see also Crosson v. Berry, 829 N.E.2d 184, 189 (Ind.Ct.App.2005).

IIL Amalysis

In the complaint at issue, while Clark admits that he resigned his position with Cripe, he alleges that Cripe retaliatorily discharged him. In particular, Clark asserts that he was constructively discharged from his employment when Cripe refused to provide him with a safe motor vehicle. On appeal, Cripe argues that the complaint fails to state a claim upon which relief can be granted because Indiana does not recognize the doctrine of constructive discharge in the context of a claim for a retaliatory discharge. We find Cripe's argument to be persuasive.

Indiana follows the doctrine of employment at will, under which an employer may discharge an at-will-employee, such as Clark, for any cause or no cause at all without incurring liability. See Wilmington v. Harvest Ins. Co., 521 N.E.2d 953, 955 (Ind.Ct.App.1988). That said, our courts have recognized three limited and strictly construed exceptions to the doe-trine of "employment at will," two of which are implicated here.⁴ In Frampton v. Central Ind. Gas Co., 260 Ind. 249, 253, 297 N.E.2d 425, 428 (1973), for example, the Indiana Supreme Court determined that, while an employee-at-will may normally be fired for any reason, he or she does possess a cause of action for wrongful discharge when an employer retaliates for the exercise of a statutorily conferred right, such as the filing of a worker's compensation claim.

Subsequently, in McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 393 (Ind.1988), the Court recognized a "separate but tightly defined exception to the employment at will doctrine" when an employer discharges an employee for refusing to commit an illegal act for which the employee would be personally liable. There, an at-will-employee was informed "he was no longer employed" with the company after he had refused to drive an overweight truck through Illinois. Id. at 391. In fashioning this "tightly defined exception," the McClanahan Court noted:

If [employee] had chosen to drive his overweight truck through Illinois, he would have been personally liable for violation of Ilinois law and subject to a fine. Furthermore, he would have been jointly and severally liable for the cost of repairing any damage to the highway or highway structures caused by his overweight vehicle.

Depriving [employee] of any legal recourse under these cireumstances would encourage eriminal conduct by both the employee and the employer. Employees faced with the choice of losing their jobs or committing an illegal act for which they might not be caught would feel pressure to break the law simply out of financial necessity. Employers, knowing the employees' susceptibility to such threats and the absence of civil retribution, would be prompted to present such an ultimatum.

Id. at 393.

In the present case, in his complaint, Clark alleged that Cripe supplied him with three unsafe vehicles and, further, that when he asked the company to provide him with a safe vehicle, Cripe refused. Thereafter, Clark "terminated his employment." Appellant's App. at 8.

Assuming arguendo that Clark's allegations are sufficient to demonstrate that, by requiring him to drive unsafe vehicles, Cripe forced Clark to commit an illegal act for which he could be subjected to personal liability,⁵ these allegations are insufficient to show that Cripe discharged Clark. Rather, Clark resigned.

In his complaint, Clark attempts to circumvent this reality by arguing that Cripe's action of failing to provide him with a safe vehicle was tantamount to a "constructive discharge." Initially, we question whether the constructive discharge doctrine-which transforms what is ostensibly a resignation into a firing-may even be used as a defense that an at-will-employee can raise in the context of a common law retaliatory discharge claim brought against his or her employer. Indeed, the practical effect of an employee's tender of his or her resignation means that the employer will not have to retaliate against the employee by discharging him or her. Put another way, we are not convinced that a constructive retaliatory discharge fits within the ambit of the narrowly-drawn exeeptions to the employee-at-will doctrine. Rather, it seems that, were we to apply the doctrine of constructive discharge to demonstrate a retaliatory discharge, we would be overly extending that which was intended by the narrowly-defined exceptions.

Nevertheless, even assuming that the constructive discharge doctrine applies in the context of a retaliatory discharge, the allegations contained in the complaint at issue are insufficient to demonstrate a constructive discharge. A constructive discharge occurs when an employer purposefully creates working conditions, which are so intolerable that an employee has no other option but to resign. See, e.g., Haubry v. Snow, 106 Wash.App. 666, 31 P.3d 1186, 1192-93 (2001) (recognizing that to establish a claim for constructive discharge, a claimant must show: (1) that the employer deliberately made the working conditions intolerable for the claimant; (2) that a reasonable person in the claimant's position would be forced to resign; (8) that the claimant resigned solely because of the intolerable conditions; and (4) that the claimant suffered damages). Before the employment situation will be deemed intolerable, however, the adverse working conditions must be unusually "aggravated" or amount to a "continuous pattern" of negative treatment. Id. The essence of the test is whether, under the totality of the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiffs position "'would have felt compelled to resign. Slack v. Kanawha County Housing Redevelopment Auth., 188 W.Va. 144, 423 S.E.2d 547, 556 (1992) (quoting Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir.1986)) (discussing Massachusetts law). Put another way, the standard by which a constructive discharge is generally determined is an objective one: "whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit." Turner v. Anheuser-Busch, Inc, 7 Cal.4th 1238, 32 Cal.Rptr.2d 223, 228, 876 P.2d 1022 (1994), overruled on other grounds by Romano v. Rockwell Internat., Inc., 14 Cal.4th 479, 59 Cal.Rptr.2d 20, 926 P.2d 1114 (1996).

In the present case, the averments contained in Clark's complaint are insufficient to allege that Cripe purposefully created a working condition so intolerable that Clark had no choice but to resign. See, e.g., Tutman v. WBBM-TV, Inc., 209 F.3d 1044, 1050 (7th Cir.2000) (recognizing that the doctrine of constructive discharge is limited to egregious cases, such as, for example, where an employee is subjected to threats or repeated racist taunting), cert. denied, 531 U.S. 1078, 121 S.Ct. 777, 148 L.Ed.2d 675 (2001). Rather, the allegations merely assert that Cripe refused to provide Clark-an installer and service technician of garage doors-with a safe vehicle and that, as a consequence, Clark resigned. Accordingly, the complaint in dispute fails to state a claim upon which relief can be granted. As such, the trial court erred by denying Cripe's motion to dismiss Clark's complaint.

For the foregoing reasons, we reverse the trial court's denial of Cripe's motion to dismiss Clark's complaint and remand for judgment consistent with this opinion.

Reversed and remanded.

FRIEDLANDER, J., concurs. ROBB, J., dissents with separate opinion.

1 . The duration of Clark's employment with Cripe was indefinite We have previously held that "[albsent a set term of employment, an employment relationship is at will." McGarrity v. Berlin Metals, Inc., 774 N.E.2d 71, 76 (Ind.Ct.App.2002), trans. denied.

2 . Clark's complaint provides: "In the early Spring of 2001, after working for a few months ... Clark was assigned ... to drive a Chevrolet van." Appellant's App. at 5. Because Clark did not commence his employment with Cripe until January 29, 2002, we will presume that Clark was assigned to drive the van in the spring of 2002.

3 . Indiana Trial Rule 12(B)(6) provides that:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required; except that at the option of the pleader, the following defenses may be made by motion:

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(6) Failure to state a claim upon which relief can be granted, which shall include failure to name the real party in interest under Rule 17 ....

4 . In Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 718 (Ind.1997), the Court determined that, if an employee establishes that "adequate independent consideration" supports the employment contract, the parties are considered to have intended to establish a relationship in which the employer may terminate the employee only for good cause. This exception, however, does not apply to the present dispute.

5 . For example, Indiana Section 9-19-3-1 provides:

A motor vehicle other than a motorcycle or motor-driven cycle, when operated upon a highway, must be equipped with brakes adequate to control the movement of and to stop and hold the vehicle. The brakes must include two (2) separate means of applying the brakes, each of which means must apply the brakes to at least two (2) wheels. If these two (2) separate means of applying the brakes are connected in any way, the means must be constructed so that failure of one (1) part of the operating mechanism does not leave the motor vehicle without brakes on at least two (2) wheels.