Forrest Perkins v. Memorial Hospital of South Bend

• Court: Indiana Court of Appeals
• Decided: April 11, 2019
• Docket: 18A-CT-1340
• Status: Published

Opinion

FILED Apr 11 2019, 10:06 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Shaw Friedman Jeffery A. Johnson Nelson Pichardo Daniel R. Appelget LaPorte, Indiana Mishawaka, Indiana

IN THE COURT OF APPEALS OF INDIANA

Forrest Perkins, April 11, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-1340 v. Appeal from the St. Joseph Superior Court Memorial Hospital of South The Honorable Jenny Pitts Manier, Bend, Judge Appellee-Defendant Trial Court Cause No. 71D05-1609-CT-404

Altice , Judge.

Case Summary1

1 Oral argument was held at the McHale Performing Arts Center at Logansport High School on March 11, 2019. We thank the staff for our warm welcome and the students for their professionalism and attentiveness throughout the argument. We also commend counsel on the quality of their written and oral advocacy.

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 1 of 12 [1] Forrest Perkins was terminated from his employment as a police officer for

Memorial Hospital of South Bend (the Hospital) and thereafter filed a

complaint for wrongful termination. Although the Hospital identified the

reason for his termination as theft of food from the Hospital’s cafeteria, Perkins

contends that he was fired because, believing he had been subpoenaed, he

testified at a former co-worker’s unemployment benefits appeal hearing. The

Hospital filed a motion for summary judgment asserting that Perkins was an at-

will employee and that because he was never actually subpoenaed to testify at

the unemployment hearing, the public policy exception to the at-will

employment doctrine did not apply. The trial court granted summary judgment

in favor of the Hospital. Perkins appeals, arguing that summary judgment was

improperly granted.

[2] We affirm.

Facts & Procedural History

[3] Perkins, who had served as a Michigan State Trooper for over thirty years,

began working for the Hospital as a security officer on June 27, 2011. In 2014,

the Hospital’s security department became a full-fledged police department, at

which time Perkins became a police officer for the Hospital. Perkins never

entered into a written employment contract with the Hospital, and he was never

promised continued employment through any specific date.

[4] On May 12, 2015, Perkins left his shift at the Hospital early, but did not

elaborate as to why he needed to leave. Perkins then went to the

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 2 of 12 unemployment benefits appeal hearing for Rick Bradley, a former co-worker,

believing he had been subpoenaed to testify. 2 Craig Whitfield, the Assistant

Chief of the Hospital’s police department, learned of the unemployment

hearing and knew that Perkins had left his shift early. Whitfield “put two and

two together” and then he and Dan Rutledge, the Chief of the Hospital’s police

department, drove to the unemployment hearing and confirmed that Perkins

was there upon seeing his vehicle in the parking lot. Appellant’s Appendix at 137.

[5] The Hospital did not appear for the unemployment hearing, choosing not to

contest Bradley’s request for unemployment benefits. The Administrative Law

Judge (ALJ) did not issue the requested subpoenas to Bradley’s three witnesses,

including Perkins, but nevertheless, all three witnesses testified before the ALJ.

Perkins maintains that his testimony concerned only the Hospital’s policies that

related to Bradley’s termination, with the apparent import being that there was

no just cause therefor. At some point after the hearing, Whitfield listened to a

recording of what transpired at the unemployment benefits appeal hearing to

find out the substance of Perkins’s testimony.

[6] On June 7, 2015, a cashier at the Hospital’s cafeteria reported to Whitfield that

when Perkins went through the line to pay for his food, Perkins did not mention

that he had gotten gravy, and thus, Perkins received gravy with his meal

without paying for it. Whitfield investigated the matter and determined that

2 Perkins was told he had been subpoenaed to testify at the hearing and believed he would receive his subpoena at the hearing.

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 3 of 12 Perkins had on two other occasions received a biscuit from the Hospital’s

cafeteria without paying for it. Perkins explained that he often had breakfast at

the Hospital’s cafeteria on weekends, each time ordering an omelet and often

times, but not always, sliding down the food line to get biscuits and gravy

before grabbing a bottle of water. He would then proceed to the cashier where

he may or may not have opened his container to show his food to the cashier.

Perkins maintains that the amounts charged often varied even if he purchased

the same thing. He would pay with his credit card and discard the receipt.

[7] Employee theft was a violation of the Hospital’s standard of conduct and was

grounds for termination. On June 18, 2015, Perkins was terminated for stealing

food from the Hospital’s cafeteria. Prior to his termination, Perkins had not

received any disciplinary complaints and had never been written up for

violations of the employee handbook.

[8] On September 2, 2016, Perkins filed a complaint against the Hospital for

wrongful termination. On January 16, 2018, the Hospital filed a motion for

summary judgment and designation of evidence, arguing that Perkins was an

employee at-will and that he was terminated for a valid, lawful reason. Perkins

filed a response in opposition thereto, claiming that under the facts of the case,

an exception to the at-will doctrine applied. The trial court held a hearing on

the summary judgment motion on March 8, 2018, and four days later, issued its

order granting summary judgment in favor of the Hospital. The trial court

accepted as true Perkins’s claim that he was terminated in retaliation for

testifying at a former co-worker’s unemployment benefits appeal hearing, but

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 4 of 12 nonetheless determined that because Perkins did not have a duty to do so under

Indiana law, he did not establish that he was entitled to the protections of the

public policy exception to the employment-at-will doctrine.

Discussion & Decision

[9] We review summary judgment de novo, applying the same standard as the trial

court: “Drawing all reasonable inferences in favor of ... the non-moving parties,

summary judgment is appropriate ‘if the designated evidentiary matter shows

that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756,

761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). “A fact is ‘material’ if its

resolution would affect the outcome of the case, and an issue is ‘genuine’ if a

trier of fact is required to resolve the parties’ differing accounts of the truth, or if

the undisputed material facts support conflicting reasonable inferences.” Id.

(internal citations omitted).

[10] The initial burden is on the summary judgment movant to “demonstrate . . . the

absence of any genuine issue of fact as to a determinative issue,” at which point

the burden shifts to the non-movant to “come forward with contrary evidence”

showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks

and substitution omitted). We will affirm upon any theory or basis supported

by the designated materials. Henderson v. Reid Hosp. & Healthcare Servs., 17

N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied. When a trial court grants

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 5 of 12 summary judgment, we carefully scrutinize that determination to ensure that a

party was not improperly prevented from having his or her day in court. Id.

[11] “Indiana adheres to the employment-at-will doctrine, under which employment

may be terminated by either party at will, with or without a reason. Harris v.

Brewer, 49 N.E.3d 632, 639 (Ind. Ct. App. 2015), trans. denied. The presumption

of at-will employment is strong, and we are disinclined to adopt broad and ill-

defined exceptions to the employment-at-will doctrine. Orr. v. Westminster

Village N., Inc., 689 N.E.2d 712, 717 (Ind. 1997); see also Morgan Drive Away, Inc.,

v. Brant, 489 N.E.2d 933, 934 (Ind. 1986) (“The employment at will doctrine

has steadfastly been recognized and enforced as the public policy of this State.

Revision or rejection of the doctrine is better left to the legislature.”) (internal

citation omitted).

[12] Indeed, our Supreme Court has recognized only three exceptions to the

employment-at-will doctrine: (1) where there is adequate independent

consideration that supports an employment contract; (2) where public policy

demands a deviation from the employment-at-will doctrine because (a) a clear

statutory expression of a right or duty is contravened or (b) an employer

discharges an employee for refusing to commit an illegal act for which the

employee would be personally liable; and (3) where the doctrine of promissory

estoppel applies. Baker v. Tremco Inc., 917 N.E.2d 650, 653-54 (Ind. 2009). If an

exception to the employment-at-will doctrine applies, an employer may be

liable for wrongful discharge for discharging an employee without just cause.

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 6 of 12 Harris, 49 N.E.3d at 640. The wrongful discharge of an at-will employee gives

rise to an action in tort. Id.

[13] For purposes of summary judgment, we, like the trial court, will accept as true

Perkins’s claim that he was terminated for testifying at Bradley’s unemployment

hearing. Perkins and the Hospital both agree that the issue on appeal is

whether Perkins’s act of testifying at the unemployment hearing falls within the

public policy exception to the at-will employment doctrine. Perkins maintains

that his good faith belief that he had been subpoenaed to testify at the

unemployment hearing gave rise to a duty to testify. The Hospital argues that

Perkins did not exercise a statutory right, and he did not have a duty to testify at

Bradley’s unemployment hearing because he was never actually subpoenaed.

[14] In support of his position, Perkins directs us to Frampton v. Cent. Ind. Gas Co.,

297 N.E.2d 425 (Ind. 1973), wherein our Supreme Court first recognized the

public policy exception to the at-will doctrine. In Frampton, an employee

brought an action against her former employer for retaliatory discharge that she

alleged stemmed from her filing of a worker’s compensation claim. The trial

court dismissed the complaint for failure to state a claim upon which relief

could be granted. Notwithstanding that there were no cases holding that

retaliatory discharge for filing a worker’s compensation claim was actionable,

the court found that such was “a wrongful, unconscionable act and should be

actionable in a court of law.” Id. at 252. Drawing parallels with cases

recognizing retaliatory evictions in landlord-tenant law, the Court concluded

that the employee had stated a claim upon which relief could be granted. The

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 7 of 12 court commented that “when an employee is discharged solely for exercising a

statutorily conferred right an exception to the general rule must be recognized.”

Id. at 428.

[15] Perkins asserts that “[i]t is not fanciful or folly to suggest that a similar

protection may be found to exist under the existing public policy exception for a

witness testifying at an unemployment hearing, when the same witness believes

he or she is required to do so in response to a lawful subpoena provided by

statute.” Appellant’s Brief at 16. In this vein, Perkins correctly notes that an

individual has a duty to respond to a subpoena issued by an ALJ for purposes

of an unemployment hearing. See Ind. Code § 22-4-19-8. 3 Perkins admits,

however, that although he believed he would receive a subpoena when he

appeared for the hearing, he never actually received a subpoena.

[16] We find Frampton inapposite to the case before us. The public policy exception

created in Frampton is “quite a limited exception” and was grounded in express

statutory language—i.e., that an employee has a right to file a worker’s

compensation claim. See Meyers v. Meyers, 861 N.E.2d 704, 707 (Ind. 2007).

Here, Perkins did not have a statutory right to testify. Further, we need not

3 Subsection (a) of this statute provides, in pertinent part:

When any person called as a witness by such subpoena, duly signed, and served upon the witness by any duly authorized person or by the sheriff of the county of which such person is a resident . . . shall fail to obey such subpoena to appear before . . . the administrative law judge. . . or shall refuse to testify or to answer any questions . . . such failure or refusal shall be reported to the attorney general for the state who shall thereupon institute proceedings . . . to compel obedience of and by such witness.

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 8 of 12 decide whether issuance of a subpoena would have created a duty for Perkins to

testify because Perkins admits that he was never issued a subpoena. 4 Absent the

exercise of a statutory right or duty, the public policy exception does not apply.

We decline Perkins’s request to extend the exception to cover the circumstances

of this case. 5

[17] We find this case to be similar to that addressed by our Supreme Court in Baker

v. Tremco Inc., 917 N.E.2d 650 (Ind. 2009). In Baker, an employee was

terminated because he refused to participate in his employer’s competitive

bidding practices given his mistaken belief that such practices were illegal. The

Court found that the employer’s competitive bidding practices were in fact

legal, and thus, the employee was lawfully terminated. The Baker Court held

that the employee’s mistaken belief about the illegality of the company’s

bidding practices was “not on par with the rights and obligations” that formed

the basis for the discharge complaint in Frampton, and thus, such did not

4 The reasons why the ALJ did not issue the subpoenas is not clear from the record. Nevertheless, we find that such reasons are not relevant to our analysis. 5 The Meyers Court noted that in the thirty years since its creation, most cases have refused to extend the Frampton exception. See, e.g., Lawson v. Haven Hubbard Homes, Inc., 551 N.E.2d 855 (Ind. Ct. App. 1990) (holding that employee did not have a retaliatory discharge claim against former employer where employee alleged she was fired for filing a claim for unemployment compensation); Campbell v. Eli Lilly & Co., 413 N.E.2d 1054 (Ind. Ct. App. 1980) (holding no claim for retaliatory discharge where employment terminated for complaining about employer’s products and alleging improper activities by supervisors), trans. denied. Cases where retaliatory discharge actions have been permitted generally involved plaintiffs allegedly terminated in retaliation for refusing to violate a legal obligation that carried penal consequences. See, e.g., McGarrity v. Berlin Metals, 774 N.E.2d 71 (Ind. Ct. App. 2002) (holding retaliatory discharge claim could stand where employee alleged he was fired for refusing to file a fraudulent tax return), trans. denied; Call v. Scott Brass, Inc., 553 N.E.2d 1225 (Ind. Ct. App. 1990) (holding that employee could bring a retaliatory discharge claim where she claimed her former employer dismissed her because she complied with a summons for jury duty), trans. denied.

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 9 of 12 warrant expansion of the public policy exception to the at-will employment

doctrine. Baker, 917 N.E.2d at 656.

[18] Like the employee’s honest belief in Baker, Perkins’s honest belief that he was

subpoenaed to testify at an unemployment hearing is “not on par with the rights

and obligations” that have been recognized as warranting an exception to the

at-will employment doctrine. Perkins has not provided us with any other

compelling reason to warrant judicial expansion of the public policy exception

to the at-will employment doctrine. Given the limited nature of the recognized

exceptions to the at-will employment doctrine, we must therefore conclude that

Perkins’s sincere yet mistaken belief that he had been subpoenaed does not fall

with the public policy exception. The trial court did not err in granting

summary judgment in favor of the Hospital.

[19] Judgment affirmed.

Tavitas, J., concurs.

Kirsch, J., dissents with opinion.

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 10 of 12 .

Forrest Perkins, Appellant-Plaintiff, Court of Appeals Case No. v. 18A-CT-1340 Memorial Hospital of South Bend, Appellee-Defendant

Kirsch, Judge. dissenting.

[1] I respectfully dissent.

[2] Co-workers who testify at Unemployment Compensation hearings provide

essential services to claimants, employers and the claims process. Often, they

are the only unbiased witnesses, and their testimony is essential to the process,

to the parties and to correct decision-making by the Administrative Law Judges

who hear the claims. The importance of such witnesses to the claims process is

not related to, or dependent upon, whether a subpoena is issued to secure their

attendance.

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 11 of 12 [3] Officer Forest Perkins was discharged by Memorial Hospital of South Bend.

The hospital’s stated reason for the termination—a failure to pay a small sum

for gravy in the hospital’s cafeteria--was found by the trial court to be

pretextual. The court determined that actual reason for the termination was

that the officer testified at a former co-employee’s Unemployment

Compensation Hearing.

[4] The majority states that Officer Perkins was told that he had been subpoenaed

and would receive the subpoena at the hearing. When the hospital did not

contest the co-employee’s claim, the Administrative Law Judge did not issue

the subpoena. Memorial Hospital of South Bend then discharged Officer

Perkins.

[5] Assuming the trial court was correct in finding that Memorial Hospital’s stated

reason for the termination was false, it has suffered no consequence from its

wrongful behavior. On the other hand, Officer Perkins testified truthfully and

suffered a very significant consequence: he was terminated from his

employment.

[6] Common sense tells us that this is not good law.

Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 12 of 12