MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 22 2020, 8:32 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEES Jarred L. Eib Curtis T. Hill, Jr. Marion, Indiana Attorney General of Indiana
Frances Barrow Deputy Attorney General
Aaron T. Craft Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jarred L. Eib, September 22, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-MI-2633 v. Appeal from the Grant Superior Court State Employees’ Appeals The Honorable Jeffrey D. Todd, Commission, Indiana Judge Department of Child Services, Trial Court Cause No. Appellees-Plaintiffs 27D01-1809-MI-157
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 1 of 19 Case Summary [1] Jarred L. Eib was terminated from his employment as a staff attorney with the
Indiana Department of Child Services (DCS). Eib appealed his dismissal to
DCS, then the State Personnel Department (SPD), and finally to the State
Employees’ Appeals Commission (the SEAC). After the SEAC granted
summary judgment in favor of DCS, Eib, pro se, sought judicial review. The
trial court affirmed the decision of the SEAC, agreeing with its determination
that Eib was an unclassified employee and that he had not established that his
dismissal contravened public policy. Eib now appeals, presenting several issues
for our review:
1. Did the SEAC err in concluding that Eib was not entitled to summary judgment or default judgment when SPD did not issue its decision until after the statutory period for such had passed?
2. Did the SEAC err in failing to disqualify the administrative law judge (ALJ) presiding over this matter?
3. Did the SEAC err in concluding that Eib was an unclassified employee?
[2] We affirm.
Facts & Procedural History [3] Eib was hired as a staff attorney for DCS on May 20, 2013. On January 6,
2017, DCS terminated Eib’s employment due to “ongoing deficiencies in
meeting [his] professional work competencies and expectations; unacceptable
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 2 of 19 behaviors and in accordance with [SPD] and DCS policies and procedures.”
Appellant’s Appendix Vol. 2 at 13. In the termination letter to Eib, DCS noted
that his dismissal was in accordance with Ind. Code § 4-15-2.2-24, 1 which
pertains to dismissal of an employee in unclassified service.
[4] On February 2, 2017, Eib, pro se, filed a complaint with DCS pursuant to the
procedure set out in I.C. § 4-15-2.2-42(a). Eib alleged that as an employee of
DCS, he was in classified civil service and, as such, could only be terminated for
just cause and was entitled to pre-deprivation proceedings prior to dismissal.
Eib maintained that failure to provide him with such denied him due process.
On February 15, 2017, DCS denied Eib’s complaint, explaining that his
position as a DCS staff attorney did not meet the standards for classified service
and that, as an employee in the unclassified service, he was required to show
that the reason for his dismissal contravened public policy, which he did not do.
[5] On February 22, 2017, Eib appealed DCS’s decision to SPD. In a letter dated
March 29, 2017, which was five days past the statutory period, SPD denied
Eib’s complaint. SPD based its denial on Eib’s status as an employee in the
unclassified service and the fact that his “[d]ismissal for poor performance d[id]
not contravene public policy.” Appellant’s Appendix Vol. 2 at 22.
1 I.C. § 4-15-2.2-24(a) provides that “[a]n employee in the unclassified service is an employee at will and serves at the pleasure of the employee’s appointing authority.” Subsection (b) provides that “[a]n employee in the unclassified service may be dismissed . . . for any reason that does not contravene public policy.”
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 3 of 19 [6] On March 29, 2017, Eib sought administrative review by filing a complaint
with the SEAC. In addition to arguing that he was a classified employee and
that he was denied statutory protections for classified employees, Eib also
argued that he was denied due process when SPD failed to comply with the
procedure set forth in I.C. § 4-15-2.2-42(e) by failing to respond to his complaint
within the allotted thirty-calendar-day time limit.
[7] On April 5, 2017, an ALJ for the SEAC issued a “Notice of Proposed Dismissal
for Lack of Jurisdiction under Ind. Code § 4-15-2.2-42(e)”. Appellant’s Appendix
Vol. 2 at 26. The ALJ rejected Eib’s claim that he was a classified employee
entitled to a pre-deprivation hearing. The ALJ noted that while DCS
employees “would normally be classified,” Eib’s position as a staff attorney fell
within an exception to state classified service in that “a substantial part of
[Eib’s] duties involve providing meaningful input on the development of policy
goals and implementation of policy,” see I.C. § 4-15-2.2-21(b)(3)(C), and that
other assignments of a DCS staff attorney would have required Eib to follow
DCS policies. Appellant’s Appendix Vol. 2 at 28. The ALJ therefore concluded
that Eib was “rightly identified as an unclassified employee.” Id. Because Eib
did not allege in his complaint that he was terminated in violation of Indiana
public policy, the ALJ found that Eib had not established a claim over which
the SEAC had statutory or subject matter jurisdiction. The ALJ afforded Eib
fifteen days in which to amend his complaint to address the identified
jurisdictional defect. The ALJ further stated: “If no appropriate motion or
amended complaint is timely filed showing jurisdiction exists, the [ALJ] will
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 4 of 19 enter a final order of dismissal.” Id. at 29. Regarding Eib’s timeliness
challenge, the ALJ, while acknowledging that SPD’s response was “beyond the
deadline,” surmised that “SPD only misses such deadlines when it is trying to
settle such matters” and then assumed such to be the reason for the delay
herein. Id. at 26.
[8] On April 20, 2017, Eib filed an amended complaint with the SEAC. On the
same day, he also filed a brief and motion in opposition to dismissal and a
motion for disqualification of the ALJ. The alleged basis for disqualification
was that in the notice of proposed dismissal, the ALJ “acted in a representative
capacity on behalf of Respondent by asserting a legal argument” that had not
been raised by DCS. Id. at 73. Eib also claimed that the ALJ improperly
excused the untimely SPD response based on his assumption that the parties
were attempting to settle the matter.
[9] On April 24, 2017, the ALJ issued an order setting a conference for May 3,
2017. In that order, the ALJ stated that “[a]fter inquiry” with both DCS and
SPD “regarding [Eib]’s classification,” DCS “felt a conference was necessary to
further discuss these issues.” Id. at 77. On the day of the scheduled conference,
Eib filed a motion for summary judgment as well as a motion to find DCS in
default, both of which were based on SPD’s untimely response. He also filed a
second motion for disqualification of the ALJ, adding as a reason for
disqualification the ALJ’s ex parte communications with DCS and SPD as
referenced in the April 24 order. On May 5, 2017, the ALJ denied Eib’s motion
for summary judgment and motion for disqualification.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 5 of 19 [10] On January 29, 2018, DCS filed a motion it titled as one for summary judgment
regarding Eib’s employment classification. 2 DCS asserted that Eib was an
unclassified employee and that he had not provided any evidence to support his
assertion that he was a classified employee. DCS maintained the SEAC did not
have jurisdiction over Eib’s complaint because as an unclassified employee Eib
was required to allege that his dismissal was contrary to public policy, which he
did not do. The same day, Eib filed a brief in support of his amended
complaint in which he continued to assert that he was a classified employee.
[11] On February 9, 2018, the ALJ entered an order regarding Eib’s employment
classification. Specifically, the ALJ found that Eib had not provided any
evidence to controvert DCS’s determination that his position as a DCS staff
attorney did not meet the requirements for classified service. The ALJ therefore
concluded that Eib was an unclassified employee. In a footnote, the ALJ noted
that Eib, as an unclassified employee, could still allege that his termination
violated public policy. Eib filed a motion to correct error, arguing that the
SEAC deprived him of an opportunity to respond to DCS’s motion for
summary judgment when it granted DCS’s motion eleven days after it was
filed. The ALJ denied Eib’s motion to correct error, finding that, even though
DCS titled its motion as one for summary judgment, such was merely a
memorandum as to the issue of Eib’s employment classification.
2 In its brief, DCS noted that after several case management orders and a period of discovery, the ALJ instructed the parties to submit briefs regarding Eib’s employment classification.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 6 of 19 [12] On June 11, 2018, DCS filed a motion for summary judgment along with a
designation of evidence and supporting brief. Eib filed a brief in opposition on
July 12, 2018. On August 17, 2018, the SEAC granted DCS’s motion for
summary judgment. In the order, the ALJ retracted his previous conclusion
that Eib fell within an exception to classified service and relied solely upon the
lack of evidence that Eib was ever employed in classified service as the basis for
the determination that Eib was an unclassified employee.
[13] On September 17, 2018, Eib filed a petition for judicial review. He filed his
brief in support thereof on March 25, 2019. The SEAC and DCS filed a brief in
opposition on May 9, 2019, and Eib filed his reply on May 29, 2019. The trial
court held a hearing on July 12, 2019. On October 16, 2019, the trial court
entered its order denying Eib’s request for relief. Eib now appeals. Additional
facts will be provided below as necessary.
Discussion & Decision [14] Eib appeals from the trial court’s denial of his petition for judicial review of the
SEAC’s decision. Judicial review of an administrative decision is limited under
the Administrative Orders and Procedures Act (AOPA). Moriarity v. Ind. Dep’t
of Natural Res., 113 N.E.3d 614, 619 (Ind. 2019). We may set aside an agency
action only if it is
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 7 of 19 (4) without observance of procedure required by law; or (5) unsupported by substantial evidence.
Ind. Code § 4-21.5-5-14(d). An action is arbitrary and capricious only where
there is no reasonable basis for the action. Ind. Dep’t of Envtl. Mgmt. v. Boone
County Res. Recovery Sys., Inc., 803 N.E.2d 267, 272 (Ind. Ct. App. 2004), trans.
denied. The “burden of demonstrating the invalidity of agency action is on the
party to the judicial review proceeding asserting invalidity.” Ind. Code § 4-
21.5-5-14(a).
[15] “Our review of agency action is intentionally limited, as we recognize an
agency has expertise in its field and the public relies on its authority to govern
in that area.” Ind. Alcohol & Tobacco Comm’n v. Spirited Sales, LLC, 79 N.E.3d
371, 375 (Ind. 2017) (citation omitted). Although we “defer to the agency’s
findings if they are supported by substantial evidence[,]” we review an agency’s
conclusions of law de novo. Moriarity, 113 N.E.3d at 619. “An interpretation
of a statute by an administrative agency charged with the duty of enforcing the
statute is entitled to great weight, unless this interpretation would be
inconsistent with the statute itself.” LTV Steel Co. v. Griffin, 730 N.E.2d 1251,
1257 (Ind. 2000). Moreover, we do not reweigh the evidence; rather, we
consider the record in the light most favorable to the agency’s decision. Ind.
State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 992 (Ind. 2014). We will affirm
the agency’s judgment unless it is clearly erroneous. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 8 of 19 Overview of Civil Service System
[16] We begin with an overview of Indiana’s civil service system. Prior to July
2011, the Indiana State Personnel Act served as the framework for human
resource management for state employees. See Ind. Code § § 4-15-2-1 to 4-15-2-
21 (repealed). Effective July 1, 2011, the Legislature replaced the Indiana State
Personnel Act with the State Civil Service System under I.C. Chap. 4-15-2.2.
The State Civil Service System is comprised of classified service and
unclassified service.
[17] A “classified employee” is defined as an employee who “(1) has been appointed
to a position in the state classified service; (2) has completed the working test
period under section 34 of this chapter; and (3) has been certified by the
appointing authority for that classification of positions.” I.C. § 4-15-2.2-4. The
working test period involves a full performance appraisal of the employee’s
work. I.C. § 4-15-2.2-34(a). Generally, classified employees hold positions that
have “a federal statutory or regulatory requirement for the establishment and
maintenance of personnel standards on a merit basis.” I.C. § 4-15-2.2-21(a)
(listing eleven federal programs that require state employees implementing the
programs to be employed on a merit basis). Classified employees can only be
dismissed for just cause and are entitled to appeal their dismissal. I.C. § 4-15-
2.2-23.
[18] An unclassified employee is a state employee not in the state classified service.
Unclassified service is separate from the state classified service and “[e]xcept as
otherwise provided, “the human resource management systems applicable to Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 9 of 19 the state classified service do not apply to the unclassified service.” I.C. § 4-15-
2.2-22(c). Employee positions that are statutorily exempt from state classified
service, include, among others, employees who hold executive level positions
involving the development of policy goals or implementation of policy. 3 I.C. §
4-15-2.2-21(b)(3)(C). An unclassified employee is an employee at will and
“may be dismissed, demoted, disciplined, or transferred for any reason that
does not contravene public policy.” I.C. § 4-15-2.2-24. Unclassified employees
may only appeal a dismissal to the SEAC under the following conditions:
An unclassified employee must establish that the [SEAC] has subject matter jurisdiction to hear the employee’s wrongful discharge claim by establishing that a public policy exception to the employment at will doctrine was the reason for the employee’s discharge. The former employee has the burden of proof on this issue.
I.C. § 4-15-2.2-42(f). A public policy exception to employment at will may be
shown if the unclassified employee establishes that the reason for discharge is
either that the employee was exercising a statutory right (such as filing a
worker’s compensation claim or refusing to commit an illegal act) or fulfilling a
statutory duty (such as reporting for jury duty). See Perkins v. Mem’l Hosp. of
South Bend, 141 N.E.3d 1231 (Ind. 2020).
3 This is the exception to classified civil service that the ALJ initially relied upon in determining Eib was an unclassified employee.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 10 of 19 [19] The appeals process for classified and unclassified state employees consists of
three steps. The complainant must first file an appeal of dismissal with the
appointing authority—DCS in this case—and the appeal must be filed within
thirty days of dismissal (Step I). I.C. § 4-15-2-2-42(c) and (e). The appointing
authority has fifteen days to issue a decision. I.C. § 4-15-2.2-42(e). If not
satisfied with the decision, the complainant can file an appeal with SPD within
fifteen calendar days of the decision of the appointing authority, and the SPD
has thirty calendar days to issue a decision (Step II). Id. If the SPD decision is
adverse, the complainant can file an appeal with the SEAC (Step III), no later
than fifteen calendar days after receiving SPD’s decision.
1. Timeliness of SPD’s Decision
[20] Eib first argues that SEAC erred in failing to recognize SPD’s duty to timely
respond to his appeal and imposing no consequences for the failure of SPD to
do so. Specifically, Eib asserts that because SPD did not respond to his Step II
appeal within thirty days, he was entitled to default judgment or summary
judgment against DCS. SEAC acknowledges that SPD failed to timely issue its
response, filing it five days after the thirty-calendar-day period expired, but
nevertheless argues that such did not act to invalidate SPD’s order or require
entry of default or summary judgment in favor of Eib.
[21] As noted above, I.C. § 4-15-2.2-42(e) provides that SPD “shall” issue a decision
within thirty calendar days. In interpreting similar statutory deadlines, we have
declined to find that the word “shall” is mandatory such that an agency loses
jurisdiction over the case. In State v. Langen, 708 N.E.2d 617, 622 (Ind. Ct. Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 11 of 19 App. 1999), this court interpreted the sixty-day timeframe requirement to enter
final orders under Ind. Code § 4-21.5-3-29(f), 4 holding that use of the term
“shall” within the statute was directory rather than mandatory. The court
determined that “[a]ll laws are mandatory in the sense that a duty of obedience
is imposed, but it does not follow that every slight departure is fatal where the
act is merely procedural and does not go to the merits.” Langen, 708 N.E.2d at
622 (quoting Allen Cnty. Dep’t of Pub. Welfare v. Ball Mem’l Hosp. Ass’n, 252
N.E.2d 424, 428 (Ind. 1969)). The test as to whether the requirement is
essential is to consider the consequences of the failure to follow the statute and
other possible interpretations. Id.
[22] The Langen court found it was “evident” from the statute that “no consequences
attach in the event of an untimely order” and thus, “under no circumstances
has the legislature deprived the Commission of its ultimate authority to issue its
final order.” Id. The court also noted that the purpose of the time period was
to “promote the prompt and expeditious resolution of the administrative
matters by the ultimate authority” and that it was “not intended as a
jurisdictional prerequisite to a valid final order.” Id.
[23] This court has since followed Langen in concluding that the Indiana Civil Rights
Commission did not lose jurisdiction to issue a final order outside the statutory
time frame. See Roman Marblene Co., Inc. v. Baker, 88 N.E.3d 1090 (Ind. Ct.
4 Subsection (f) provides that the Indiana Real Estate Commission “shall” issue a final order disposing of a proceeding or remanding within sixty days of the latter of three specified occurrences.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 12 of 19 App. 2017), trans. denied. In Roman Marblene, this court determined that “the
legislature did not intend the prescribed time period to be essential to the
validity of the ultimate authority’s final order.” Id. at 1098. The court
understood the respondent company’s frustrations with the agency’s nearly five-
month delay beyond the statutory time period in issuing its final order but
nevertheless held that “the order issued is not void.” Id.
[24] Relying on Langen and Roman Marblene, this court determined in Ind. Behavioral
Health & Human Servs. Licensing Bd. v. Thomas, 108 N.E.3d 942, 944 (Ind. Ct.
App. 2018), trans. denied, that the statutory period set forth in Ind. Code § 4-
21.5-3-27(g), was directory rather than mandatory. The Thomas court
concluded that the agency’s order issued outside of the ninety-day statutory
requirement was not void and thus, the trial court erred in vacating the agency’s
decision on such grounds. Id.
[25] Eib has provided no authority to support his position that SPD’s failure to
timely file its decision had dire consequences that should have resulted in him
being granted relief as against DCS, and we find nothing in the statute setting
out consequences that attach in the event an order is issued beyond the thirty-
calendar-day period. With this in mind, and given the above caselaw, we
conclude that the statutory period set out in I.C. § 4-15-2.2-42(e) is directory
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 13 of 19 rather than mandatory. The SEAC did not err in concluding that Eib was not
entitled to judgment on account of SPD’s delay in issuing its decision. 5
2. Disqualification of ALJ
[26] Eib argues that the SEAC erred in not disqualifying the ALJ who presided over
this matter. Eib asserts that the ALJ should have been disqualified because he
(1) made certain assumptions that favored DCS, (2) acted in a representative
capacity by asserting a legal argument on behalf of DCS, and (3) engaged in
communications with DCS and SPD outside of the proceedings. Eib maintains
that the ALJ’s actions met the standard for disqualification under AOPA in that
they demonstrate prejudice and bias and constitute prohibited ex parte
communication. See I.C. § 4-21.5-3-10(a)(1) (prejudice and bias); I.C. § 4-21.5-
3-11(a)(1) (ex parte communication).
[27] Members of the SEAC are required to “fairly and impartially” determine the
validity of employee appeals. I.C. § 4-15-1.5-2. As adjudicators, they are
entitled to a strong presumption that they are unbiased and unprejudiced. See
Moore v. Liggins, 685 N.E.2d 57, 63 (Ind. Ct. App. 1997). To overcome this
presumption, the party seeking to disqualify an adjudicator must establish
actual personal bias. Id. “Merely asserting bias and prejudice does not make it
5 Although we have concluded that Eib was not entitled to relief based on SPD’s delay in issuing its decision, we cannot ignore the ALJ’s comments in its order regarding this issue. As noted above, the ALJ stated in a footnote that “SPD only misses such deadlines when it is trying to settle such matters” and then “assume[d]” such to be the reason for the delay herein. Id. at 26. The ALJ’s comments in this regard were wholly improper.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 14 of 19 so.” In re Estate of Wheat, 858 N.E.2d 175, 183 (Ind. Ct. App. 2006) (quoting
Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002)); see also New Trend Beauty Sch.,
Inc. v. Ind. State Bd. of Beauty Culturist Examiners, 518 N.E.2d 1101, 1105 (Ind.
Ct. App. 1988) (holding that in absence of a demonstration of actual bias,
courts should not interfere in administrative process).
[28] Eib complains that the ALJ improperly excused SPD’s failure to timely issue a
decision based on the ALJ’s assumption that the parties were trying to settle the
matter. Having concluded above that the statutory time period was directory
rather than mandatory, there are no consequences for SPD’s failure to meet the
statutory deadline. Thus, the ALJ’s assumed reason for the delay, although
improper, is irrelevant because Eib was not entitled to relief based upon SPD’s
untimeliness in responding to his Step II appeal.
[29] Eib claims the ALJ demonstrated bias by addressing a legal argument not
presented by DCS. Specifically, he points to the ALJ’s initial determination
that Eib’s position fell within an exception to classified employees listed in I.C.
§ 4-15-2.2-21(b). Ultimately, however, the ALJ switched course in its final
order granting summary judgment in favor of DCS and concluded that Eib had
not presented any evidence to controvert DCS’s assertion that Eib was an
unclassified employee, which DCS has maintained since the day it terminated
Eib’s employment. We fail to see how the ALJ’s consideration of applicable
law demonstrates bias.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 15 of 19 [30] Eib also claims the ALJ should have recused himself given his ex parte
communication with DCS and SPD as to his employment classification. The
reliance on ex parte communications is not allowed in administrative hearings
of an adjudicative nature. Parker v. Ind. State Fair Bd., 992 N.E.2d 969, 977
(Ind. Ct. App. 2013). Not all ex parte communications require disqualification,
however. Here, it is clear that the ALJ engaged in improper ex parte
communication with DCS and SPD, and the ALJ is admonished to avoid such
ex parte communications in the future. Nevertheless, the record demonstrates
that Eib was advised of such communication and was afforded an opportunity
to be heard – and in fact was heard – on the matter of his classification, which
was the subject of ex parte communication at issue. Cf. Worman Enterprises, Inc.
v. Boone Cnty. Waste Mgmt. Dist., 805 N.E.2d 369, 375 (Ind. 2004) (noting that
due process may be denied if parties not given opportunity to be heard and
comment on all evidence in a case). Eib does not explain how he was
prejudiced by the alleged ex parte communication. Under these circumstances,
the ALJ was not required to recuse himself.
[31] Eib claims that the ALJ showed bias by copying nearly verbatim the reasoning
as to the determination of his employment status as set forth in the notice of
proposed dismissal and using its February 9, 2018 order determining that Eib
was an unclassified employee. Eib asserts that this demonstrates that the ALJ’s
mind “was made up from the outset of these proceedings” and that he did not
consider arguments Eib made following the notice of proposed dismissal.
Appellant’s Brief at 24. At all stages throughout the appeals process, the issue
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 16 of 19 and arguments presented by the parties have been whether Eib, as a DCS staff
attorney, was employed in state classified service, thus entitling him to certain
statutory rights. That the ALJ engaged in the same analysis as to this issue on
two different occasions, albeit choosing to recite from its previous decision,
does not indicate bias. Cf. Cnty. of Lake v. Pahl, 28 N.E.3d 1092, 1100 (Ind. Ct.
App. 2015) (noting that it is not “per se improper for a trial court to enter
findings that are verbatim reproductions of submissions by the prevailing
party”), trans. denied. In any event, we note that the ALJ ultimately altered its
analysis as to Eib’s employment classification in its final order granting
summary judgment for DCS. Eib presented no evidence of actual bias on
behalf of the ALJ.
3. Unclassified Employee Determination
[32] Finally, Eib argues that the ALJ erred in concluding that he was an unclassified
employee. Eib’s employment classification is the crux of these proceedings.
[33] SPD informs state employees that “[a]ll employees not expressly placed in the
classified service are in the unclassified service.” See
https://www.in.gov/spd/policies-and-procedures/laws-rules-and-policies/
(last visited September 3, 2020). This statement is consistent with I.C. § 4-15-
2.2-21(a), which provides that classified positions are limited to programs that
have a federal requirement for employment on a merit basis. There is no
dispute that DCS has programs that may be connected to some of the identified
federal programs. This does not, however, mean that all DCS employees are in
positions that are classified. Indeed, to be considered an employee in classified Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 17 of 19 service, I.C. § 4-15-2.2-4 makes clear that the employee had to have (1) been
appointed to a position in state classified service, (2) completed a working test
period that involved a performance appraisal, and (3) been certified by the
appointing authority for classified service.
[34] In his termination letter, DCS informed Eib that it considered him to be an
unclassified employee. In his Step I appeal to DCS, Eib simply asserted his
belief that his position fell within state classified service. In response, DCS
responded that Eib’s position as a staff attorney for DCS did not meet the
requirements for classified service. Throughout these entire proceedings, Eib
has merely claimed to be a classified employee, without ever providing
evidence that he met the requirements of a classified employee. To be sure, he
has not established that DCS appointed him to a position in classified service,
that he completed a working test period that included a full performance
appraisal, and that he was certified by DCS for classified service. See I.C. § 4-
15-2.2-4.
[35] Contrary to Eib’s argument, the SEAC did not improperly shift the burden to
him by requiring that he produce such evidence to avoid entry of summary
judgment. DCS, as the moving party, established that Eib was an employee in
unclassified service and thus, not entitled to the due process he felt he was
owed. The burden then shifted to Eib to establish that he was an employee
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 18 of 19 within classified service. As we noted above, Eib presented no such evidence. 6
We therefore conclude that the SEAC did not err in granting summary
judgment in favor of DCS.
[36] As an employee in unclassified service, Eib was required to establish that the
SEAC had subject matter jurisdiction to hear his wrongful discharge claim by
establishing that he was terminated for reasons that contravene public policy.
See I.C. § 4-15-2.2-42(f). The reason given by DCS for Eib’s dismissal was
inadequate work performance, which does not implicate public policy. Eib has
made no claim that his dismissal was for any other reason. He only argues that
he was denied due process because he was not afforded a pre-deprivation
hearing that must be provided to employees in classified service. Eib did not
meet his burden. The SEAC properly granted summary judgment in favor of
DCS.
[37] Judgment affirmed.
Bailey, J. and Crone, J., concur.
6 In his brief, Eib takes issue with the ALJ’s initial reasons for determining that he was not a classified employee. In its first order on the issue of Eib’s classification, the ALJ seemingly assumed Eib’s position fell within classified service but then considered Eib’s duties as a staff attorney for DCS and found that his position fell within an exception to such. In the final summary judgment order, however, the ALJ stated that there was no evidence to support its previous determination, but rather, the record demonstrated that Eib was never employed in classified service. Thus, we need not address Eib’s many arguments as to why the ALJ’s initial determination was in error.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-2633 | September 22, 2020 Page 19 of 19