MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 10 2019, 9:14 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




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Mary Jane Lapointe                                      Curtis T. Hill, Jr.
Daniel Lapointe Kent                                    Attorney General of Indiana
Lapointe Law Firm, P.C.
                                                        Winston Lin
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Suzanne E. Esserman,                                    May 10, 2019
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        18A-PL-2375
        v.                                              Appeal from the Marion Superior
                                                        Court
Indiana Department of                                   The Honorable P.J. Dietrick,
Environmental Management,                               Judge
Appellee-Defendant.                                     Trial Court Cause No.
                                                        49D12-1609-PL-31303



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                    Page 1 of 29
                               Case Summary and Issues
[1]   Suzanne Esserman appealed her termination from the Indiana Department of

      Environmental Management (“IDEM”) to the State Employees’ Appeals

      Commission (“SEAC”). The SEAC granted partial summary judgment in

      favor of IDEM before issuing a final order on Esserman’s remaining claims.

      Esserman filed a petition for judicial review of the agency action and, after a

      hearing, the trial court denied Esserman’s petition and affirmed the SEAC’s

      order. Esserman now presents three issues for our review, which we

      consolidate and restate as: (1) whether the trial court erred in affirming the

      SEAC’s grant of partial summary judgment on Esserman’s claim that she could

      be personally liable for refusing to break a law; and (2) whether the trial court

      erred in concluding the SEAC’s decision was supported by substantial evidence.

      Concluding the trial court erred in affirming the SEAC’s grant of partial

      summary judgment but the trial court did not err in concluding the SEAC’s

      decision on her remaining claims was supported by substantial evidence, we

      reverse in part, affirm in part, and remand.



                            Facts and Procedural History
[2]   Esserman was employed by IDEM for nearly twenty-five years before she was

      terminated on January 17, 2014. She then appealed her termination to the

      SEAC on March 10, 2014, alleging she was terminated for reasons in violation

      of public policy, including: (1) objecting to the misuse of State funds in

      violation of Indiana Code section 5-11-5.5-8 and Indiana Code section 4-15-10-

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 2 of 29
      4; (2) refusing to break the law for which she could be personally liable, i.e.,

      Indiana Code section 5-11-5.5-2 and well as other Indiana statutes and common

      law prohibiting fraud, theft, and deception; (3) objecting to a sexually hostile

      work environment in violation of Title VII of the Civil Rights Act of 1964, 42

      U.S.C. § 2000e-(3)(a); and (4) objecting to IDEM’s failure to accommodate her

      disabilities in violation of State policy on disabilities and the Americans with

      Disabilities Act (“ADA”), 29 U.S.C §§ 12112, 12203. See Appellant’s

      Appendix, Volume II at 62-63.


[3]   IDEM moved for partial summary judgment in regard to Esserman’s first two

      claims on June 29, 2015.1 In support of its motion, IDEM designated: (1)

      Esserman’s civil service employee complaint along with five letters sent by

      Esserman’s counsel to various IDEM individuals and entities incorporated as

      exhibits; (2) Esserman’s termination letter; and, (3) a copy of an order in Meeks

      v. INDOT, SEAC No. 12-13-106 (Jan. 21, 2014). See Appellant’s App., Vol. III

      at 62. The administrative law judge (“ALJ”) granted IDEM’s motion on

      September 15, 2015.2




      1
       The record clearly indicates that Esserman filed a response to IDEM’s motion for summary judgment but
      Esserman’s response is not included in the Appellant’s or Appellee’s Appendices. See, e.g., Appellant’s App.,
      Vol. II at 49, 58. It does not appear, however, that Esserman designated any evidence in response.
      2
        Following the ALJ’s grant of summary judgment on these issues in favor of IDEM, Esserman filed a
      complaint against IDEM in state court, alleging unlawful retaliatory termination in violation of the IFCA.
      IDEM successfully moved to dismiss the complaint on the basis of sovereign immunity and our supreme
      court affirmed the trial court on transfer. See Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1193
      (Ind. 2017).

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                       Page 3 of 29
[4]   An administrative hearing was conducted on January 27 and 28, 2016. There,

      the ALJ limited evidence to Esserman’s remaining claims and, after hearing

      evidence, issued a non-final order concluding:


              [IDEM’s] termination of [Esserman] did not violate public
              policy. [Esserman] has failed to sustain her burden of proving
              that a public policy exception to the employment at-will doctrine
              existed regarding her termination by [IDEM].


      Appellant’s App., Vol. II at 47, ¶ 44. Esserman objected to the ALJ’s

      determination on May 5, 2016 and a hearing was conducted before the SEAC

      on August 9. The SEAC issued a final order incorporating portions of the non-

      final order on August 23. Esserman then filed a petition for judicial review on

      September 1, and the trial court heard argument on July 10, 2018. The trial

      court then issued an order granting summary judgment in favor of IDEM on

      September 4, 2018. The trial court’s findings of fact and conclusions of law

      provided:


              I. Findings of Fact


              ***


              6. From 2009 until [Esserman’s] termination in 2014,
              [Esserman] received “Does Not Meet Expectations” in
              performance ratings.


              7. In May 2011, [Esserman] filed a sexual harassment complaint
              against two coworkers. At that time, [Esserman] worked in the
              Finance and Operations Section of OLQ. After filing the
              complaint, [Esserman] went on Family Medical Leave (“FML”)
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 4 of 29
        for six months in June 2011 during which time the Indiana State
        Personnel Department (“SDP”) investigated the complaint.


        8. SDP ultimately concluded the sexual harassment complaint
        had no merit. [Esserman’s] claims include an allegation that she
        was fired due to filing that complaint.


        9. After [Esserman] returned from FML in December 2011, her
        then supervisor recommended that [Esserman] be terminated due
        to poor performance reviews, but [Esserman] was instead
        transferred to a different section, ELFT, by the Department’s
        Commissioner where [Esserman] became an SEM1.


        10. [Esserman’s] new supervisors in ELFT were aware of
        [Esserman’s] past negative performance evaluations.


        11. [Esserman’s] duties as an SEM1 included reviewing claims
        for reimbursement from the state for accuracy.


        l2. [Esserman] took FML from March 2012-Apri1 2012.


        13. On July 30, 2012 [Esserman] was given a written reprimand
        for behavior at work.


        14. [Esserman] was given an Interim Appraisal covering the
        period of January 1, 2012-October 1, 2012, which rated
        [Esserman] as “Does Not Meet Expectations.”


        15. After this Interim Appraisal, [Esserman] was given a Work
        Improvement Plan (“WIP”) by her supervisor designed to focus
        on three key components of [Esserman’s] job. This plan was
        never completed due to concerns about accommodating
        [Esserman’s] disability and was not used in evaluating
        [Esserman’s] performance.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 5 of 29
        16. On November 30, 2012, [Esserman] met with SPD to discuss
        accommodating her disability. [Esserman] informed SPD of her
        need to frequently use the restroom. SPD instructed the
        building’s cleaning staff to leave extra toilet paper for [Esserman]
        to use.


        17. [Esserman] took FML from January 23, 2013-June 2, 2013.
        When [Esserman] returned to work, her hours were restricted to
        twenty hours per week for the first four weeks and thirty hours
        per week for the next two weeks. [Esserman] was hospitalized
        on June 25-26, 2013.


        18. After a doctor’s appointment on July 5, 2013, [Esserman]
        worked until July 22, 2013 on a reduced schedule after which she
        returned to a full-time work schedule until she took FML again
        from August 13, 2013 to October 21, 2013.


        19. In 2013, [Esserman’s] performance expectations required her
        to review at least $1.4 million in claims per year with 90%
        accuracy.


        20. In an effort to increase departmental efficiency, all ELTF
        claims reviewers were instructed to apply “reduced scrutiny” to
        entities that are known to generally submit good claims.


        21. [Esserman] claimed this instruction violated Indiana law and
        so she refused to comply with the reduced scrutiny instruction.
        [Esserman] was reassigned to claims to which that instruction did
        not apply. [Esserman’s] objection did not play a role in her
        termination.


        22. [Esserman] claims she was fired in violation of public policy
        for refusing to apply reduced scrutiny to certain claims.



Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 6 of 29
        23. [Esserman], like all employees, had a program on her
        computer that tracked her progress towards her goal.
        [Esserman’s] supervisor by the end of 2014 was checking
        [Esserman’s] progress every week.


        24. [Esserman] was rated as “Does Not Meet Expectations” for
        her 2013 annual review. [Esserman’s] expectations were
        adjusted to take into account her FML leave and disability
        accommodations.


        25. The Assistant Commissioner of Land Quality recommended
        [Esserman] be terminated for repeatedly failing to meet
        expectations.


        26. The Commissioner terminated [Esserman] on January 17,
        2014.


        27. [Esserman] claims this termination violated Ind. Code § 5-
        11-5.5-8, that she was fired in violation of public policy, that she
        was fired in retaliation for reporting sexual harassment, that she
        has a claim for whistleblower retaliation under Ind. Code § 4-15-
        10-4, and that she was terminated in retaliation for her disability.


        II. Conclusions of Law


        28. [Esserman] seeks judicial review of the SEAC ALJ’S
        findings and requests that this Court order the agency to either
        reinstate [Esserman] or compensate her for lost income.


        29. This Court may only remand the decision to the ALJ if his
        decision 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

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 7 of 29
        statutory right, or . . . (4) without observance of procedure
        required by law, or (5) unsupported by substantial evidence
        pursuant to Ind. Code § 4-21.5-5-14(d). See Indiana Same Bd. of
        Health Facility Adm’rs v. Werner, 841 N.E.2d 1196 (Ind. Ct. App.
        2006). Ind. Code § 4-15-2.2-42 explicitly states that proceedings
        before SEAC are governed by AOPA.


        30. The requested relief is unavailable. [Esserman] requests that
        this Court either reinstate her to her former position or order
        [IDEM] to compensate [Esserman] financially. However, if a
        court finds on judicial review that a final agency action is
        improper, it only has the power to remand the matter back to the
        agency for further proceedings. Ind. Code § 4-21.5-5-15. The
        Court of Appeals has “frequently concluded that remand is the
        appropriate remedy for improper administrative agency action.”
        [Werner, 841 N.E.2d at 1209]. A court may not instruct an
        agency to take any specific action without first having given the
        agency an opportunity to correct any errors this Court finds.
        Indiana Family and Social Services Admin. v. Culley[,] 769 N.E.2d
        680, 684-685 (Ind. Ct. App. 2002) (citations omitted).


        31. This Court must afford “due deference” to the agency’s
        decisions because it has “expertise in its given area.” Ballard v.
        Book Heating & Cooling, Inc., 696 N.E.2d 55, 56 (Ind. Ct. App.
        1998). An interpretation of statutes and regulations by the
        administrative agency charged with the duty of enforcing those
        regulations and statutes is entitled to great weight unless the
        interpretation would be inconsistent with the law itself. LTV
        Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000).


        32. A “court must review the record of proceedings in the light
        most favorable to the administrative proceeding.” Brennan v. Bd.
        of Zoning Appeals of Evansville and Vanderburgh County, 695 N.E.2d
        983, 985 (Ind. Ct. App. 1998) (citing John Malone Enterprises, Inc.
        v. Schaffer, 674 N.E.2d 599, 605 (Ind. Ct. App. 1996)). A trial

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 8 of 29
        court may not “reweigh the evidence or reassess witness
        credibility.” Andrianova v. Ind. Family Soc. Servs. Admin, 799
        N.E.2d 5, 7 (Ind. Ct App. 2003).


        33. [Esserman] claims that the ALJ erred by granting [IDEM’s]
        Motion for Partial Summary Judgment with respect to
        [Esserman’s] claims that she was fired for refusing to break the
        law because the ALJ based his opinion on improperly designated
        evidence and because the facts support [Esserman’s] case. Both
        claims fail.


        34. The ALJ did not rely on improperly designated evidence in
        granting summary judgment to the State. The State properly
        filed a motion for partial summary judgment and the ALJ
        properly applied the summary judgment standard. Choosing not
        to designate affidavits, depositions, or other sworn testimony or
        documents does not change a motion for partial summary
        judgment into a motion to dismiss.


        35. [Esserman’s] claimed disputed material fact, that she could
        have been personally liable for the crime of fraud, theft, or
        deception, is not a factual assertion, but merely an unsupported
        legal conclusion which was properly rejected by the ALJ on the
        motion for partial summary judgment. All of these crimes
        require intent. See Wright v. Pennamped, 657 N.E.2d 1223, 1230
        (Ind. Ct. App. 1995)(intent to deceive required for fraud); Ind.
        Code § 35-43-4-2(a)(theft requires intent to deprive); Ind. Code §
        35-43-5-3(a)(2)-(3)(requiring knowledge or intent for the crime of
        making a false statement). The ALJ properly found no evidence
        suggesting [Esserman] would have had the requisite intent or
        knowledge to be liable for of any of these crimes and so properly
        denied the claim. Additionally, the ALJ concluded that
        [Esserman] would not have been personally liable for misuse of
        state resource [sic], a conclusion that is both reasonable in light
        of the statutory scheme and within the agency’s area of expertise,
        and so is deserving of this Court’s deference.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 9 of 29
        36. [Esserman] argues the ALJ improperly excluded evidence on
        illegal activity. This claim also fails. Whether or not there was
        in fact a violation of the law is not relevant for determining if the
        whistleblower statute, Ind. Code § 4-15-10-4, applies. That
        statute only requires that an employee make “a reasonable
        attempt to ascertain the correctness of any information.” The
        veracity of a whistleblower’s report is not relevant in determining
        whether the whistleblower was illegally terminated in retaliation
        for making the report, and so evidence concerning any alleged
        illegal activity in this case is not relevant. [Esserman] claims that
        she was fired for refusing to do something she thought was
        illegal. The ALJ reached the opposite conclusion: [Esserman]
        was not fired for her objection to giving certain documents less
        scrutiny.


        37. [Esserman’s] claim that there was a failure to accommodate
        also fails. The ALJ reviewed the evidence and concluded that
        her supervisors were telling the truth when they determined that
        [Esserman’s] termination was unrelated to her accommodation.
        This court may not “reweigh the evidence or reassess witness
        credibility.” [Andrianova, 799 N.E.2d at 7]. There is enough
        evidence to support the ALJ’S conclusion that it cannot be said
        to be unsupported by substantial evidence, arbitrary, capricious,
        or contrary to law. [Esserman’s] claimed defects, such as
        claiming the required $1.4 million of reviewed claims was not
        adjusted for [Esserman’s] disability or that the October 2012 WIP
        were improperly used in [Esserman’s] termination, is a request to
        reweigh the facts and reach the opposite conclusion of the ALJ
        which this Court may not do.


        38. [Esserman] claims that the ALJ’s statement that there were
        problems with both the “quality and quantity” of her work is
        reversible error. This claim also fails. There is substantial
        evidence in the record demonstrating problems with the quality
        of [Esserman’s] work, and as such the ALJ’s statement cannot be
        said to be arbitrary. Even if the ALJ is mistaken and this Court

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 10 of 29
              finds that there was not substantial evidence supporting a
              conclusion that there were issues with the quality of [Esserman’s]
              work, the ALJ’s error is harmless. The result would not change
              if the word “quality” was removed, as the ALJ’s written decision
              makes clear that the primary reason for the termination of
              [Esserman’s] employment involved issues with the quantity of
              work completed.


              39. [Esserman] claims the ALJ failed to address substantial
              evidence relevant to all of her claims. This claim also fails. The
              ALJ’s decision covers each claim and the relevant facts in detail.
              The agency further instructed the ALJ to cover other theories of
              liability as well after the ALJ issued his Non-Final Order[.] This
              court may not “reweigh the evidence or reassess witness
              credibility.” [Andrianova,] 799 N.E.2d at 7. The ALJ addressed
              substantial evidence relevant to all of [Esserman’s] claims and
              ruled against [Esserman]. [Esserman’s] reasoning for why the
              ALJ’s conclusions on the sexual harassment complaint, disability
              accommodation, and reasons for termination were improper
              amount to a request that this Court reweigh the evidence and
              find in [Esserman’s] favor. The ALJ’s conclusion cannot be said
              to be unsupported by substantial evidence, arbitrary, capricious,
              or contrary to law and so the conclusions of the ALJ cannot be
              disturbed.


      Appealed Order at 1-10. Esserman now appeals.



                                Discussion and Decision
                                     I. Standard of Review
[5]   Esserman challenges the trial court’s order upholding the SEAC’s

      administrative decision. Under the Administrative Orders and Procedures Act


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 11 of 29
      (“AOPA”), a court may grant relief only if it determines that a person seeking

      judicial relief has been prejudiced by an agency action that 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;
              (4) without observance of procedure required by law; or (5)
              unsupported by substantial evidence.


      Ind. Code § 4-21.5-5-14(d).


[6]   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).

      “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 and Tobacco Comm’n v. Spirited Sales, LLC, 79 N.E.3d

      371, 375 (Ind. 2017). 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 v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614, 619 (Ind. 2019).

      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 affirm the agency’s judgment

      unless it is clearly erroneous. Id.


[7]   Here, IDEM partially disposed of Esserman’s claims through summary

      judgment. Under AOPA, an ALJ considers a motion for summary judgment as

      a court would under Trial Rule 56(C). Ind. Code § 4-21.5-3-23(b). Summary
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 12 of 29
      judgment is a tool which allows a trial court to dispose of cases where only legal

      issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving

      party has the initial burden to show the absence of any genuine issue of material

      fact as to a determinative issue. Id. An issue is “genuine” if a trier of fact is

      required to resolve the truth of the matter, while a fact is “material” if its

      resolution affects the outcome of the case. Id. As opposed to the federal

      standard which permits the moving party to merely show the party carrying the

      burden of proof lacks evidence on a necessary element, Indiana law requires the

      moving party to “affirmatively negate an opponent’s claim.” Id. (quotation

      omitted). The burden then shifts to the non-moving party to come forward with

      contrary evidence showing an issue to be determined by the trier of fact. Id.

      We construe all factual inferences in favor of the non-moving party and resolve

      all doubts as to the existence of a material issue against the moving party.

      Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Indeed, summary judgment

      is appropriate only when “the designated evidentiary matter shows that there is

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

      a judgment as a matter of law.” Ind. Trial Rule 56(C).


                                II. Refusal to Break the Law
[8]   Esserman argues the trial court erred in concluding she could not establish a

      claim that she was discharged for refusing to break the law for which she could

      be personally liable and by concluding that the SEAC properly dismissed this

      claim on summary judgment.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 13 of 29
[9]    Specifically, Esserman alleged in her complaint:


               I am subject to personal liability for misuse of State funds, or
               conspiracy to misuse State funds under [the Indiana False Claims
               Act (“IFCA”)], as well as under Indiana statutes and common
               law prohibiting fraud, theft and deception. I therefore could not
               simply sign-off on claims for dispersal of State funds without
               reviewing them, when I knew they contained fraudulent charges,
               and when signing meant I had actually reviewed them. My
               refusal to do so resulted in the termination of my employment in
               violation of Indiana public policy.


       Appellant’s App., Vol. II at 62.


[10]   In McClanahan v. Remington Freight Lines, our supreme court recognized an

       exception to the employment at will doctrine when it upheld a wrongful

       discharge claim for damages by a truck driver who alleged he was fired for

       refusing to violate Illinois state weight limits. 517 N.E.2d 390, 393 (Ind. 1988).

       Thus, under common law, an employee cannot be terminated from

       employment for refusing to break a law for which he or she could be personally

       liable. See id.


                                                     A. IFCA
[11]   Esserman claims she was terminated for refusing to the violate the IFCA.

       Modeled after the federal False Claims Act, 31 U.S.C. §§ 3729-3733, the IFCA

       applies to fraud committed against the State of Indiana. Ind. Code § 5-11-5.5-2.

       The IFCA provides, in relevant part:




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 14 of 29
                A person[3] who knowingly or intentionally:


                         (1) presents a false claim to the state for payment or
                         approval;


                         (2) makes or uses a false record or statement to obtain
                         payment or approval of a false claim from the state;


                         ***


                         (7) conspires with another person to perform an act
                         described in subdivisions (1) through (6); or


                         (8) causes or induces another person to perform an act
                         described in subdivisions (1) through (6);


                is, except as provided in subsection (c), liable to the state for a
                civil penalty of at least five thousand dollars ($5,000) and for up
                to three (3) times the amount of damages sustained by the state.
                In addition, a person who violates this section is liable to the
                state for the costs of a civil action brought to recover a penalty or
                damages.


       Ind. Code § 5-11-5.5-2(b).


[12]   Applied here, Esserman alleges she would have been subject to personal

       liability under the IFCA if she had signed-off on “claims for dispersal of State

       funds without reviewing them, when [she] knew they contained fraudulent




       3
        “Person” is defined to include “a natural person, a corporation, a firm, an association, an organization, a
       partnership, a limited liability company, a business, or a trust.” Ind. Code § 5-11-5.5-1(5).

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                     Page 15 of 29
charges, and when signing meant [she] had actually reviewed them.”

Appellant’s App., Vol. II at 62. On summary judgment, the ALJ reasoned

Esserman had “failed to assert how she could be personally liable under the

IFCA[,]” because she did not claim that she


        knowingly or intentionally presented a false claim to the state,
        nor does she assert that she gave false information to obtain
        payments from the state. I.C. §§ 5-11-5.5-2(b)(1), (2).
        Additionally, [Esserman’s] argument that she might be
        personally liable for conspiring to perform the aforementioned
        actions is misplaced. While [Esserman] “is not required to show
        an express agreement” between herself and those presenting false
        claims, she “must produce more than ‘a whiff of the alleged
        conspirators’ assent.’” United Stares ex rel. Durcholz v. FXW Inc.,
        189 F.3d 542, 546 (7th Cir. 1999). Simply approving of the
        documentation before her does not rise to the level of presenting
        a false claim or false information for payment, nor does it show
        her tacit agreement with those that were allegedly presenting
        false claims to the ELTF. [Esserman’s] bald assertion that she
        could have been liable under the IFCA, without further evidence,
        does not “support the inferential leaps that would be required to
        conclude that” [Esserman] conspired with those presenting false
        claims to the state. Id. Thus there is no genuine issue of material
        fact concerning [Esserman’s] alleged personal liability under the
        IFCA.


Id. at 58-59, ¶ 15, 17. The trial court then affirmed the SEAC’s disposal of

Esserman’s claims on summary judgment, reasoning:


        the ALJ concluded that [Esserman] would not have been
        personally liable for misuse of state resource [sic], a conclusion
        that is both reasonable in light of the statutory scheme and within
        the agency’s area of expertise, and so is deserving of this Court’s
        deference.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 16 of 29
       Appealed Order at 8, ¶ 35.


[13]   Notably however, an administrative agency’s interpretation of a statute is only

       entitled to deference when: (1) the administrative agency is charged with the

       duty of enforcing the statute; and (2) when that interpretation is not inconsistent

       with the statute itself. Moriarity, 113 N.E.3d at 619. Here, as the SEAC itself

       explained, it is not charged with the duty of enforcing the IFCA:


                  the IFCA requires that an employee bring an action under
                  [Indiana Code section 5-11-5.5-8(a)(2)] in “any court with
                  jurisdiction.” I.C. § 5-11-5.5-8(c). “SEAC is an executive branch
                  administrative agency, not a court.” Meeks v. Indiana Dept. of
                  Transp., Further Procedural Order RE: Amended Complaint,
                  State Emp. App. Comm’n No. 12-13-106 (Jan. 21, 2014). Thus,
                  SEAC is without jurisdiction to hear [Esserman’s] claims brought
                  under the IFCA.


       Appellant’s App., Vol. II at 58, ¶ 14.4 As the SEAC was not “charged with the

       duty of enforcing the statute[,]” the trial court’s deference to the SEAC’s

       interpretation was therefore misplaced.5 Moriarity, 113 N.E.3d at 619.




       4
           The SEAC later more succinctly explained:

                The parties are reminded that [the] SEAC is without jurisdiction to hear claims regarding the
                legitimacy of [Esserman’s] assertion that state funds were being misused. [The] SEAC only has
                the jurisdiction to determine whether [Esserman’s] termination was a result of her filing a
                written report that state funds were being misused.
       Id. at 60, n.4.
       5
        Esserman’s claim under the IFCA fell under the purview of the SEAC only by application to her discharge
       of employment. The SEAC’s jurisdictional statute provides that “[a]n employee in the unclassified service


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                    Page 17 of 29
[14]   Even if the SEAC was charged with enforcing the IFCA, however, we would

       still conclude its interpretation was “inconsistent with the statute itself.” Id.

       Once again, the IFCA subjects persons to liability for, inter alia, “knowingly or

       intentionally” presenting “a false claim to the state for payment or approval[.]”

       Ind. Code § 5-11-5.5-2(b)(2). The SEAC concluded that “[s]imply approving of

       the documentation . . . does not rise to the level of presenting a false claim or

       false information for payment[.]” Appellant’s App., Vol. II at 58, ¶ 17. But

       Esserman’s allegation was not simply that she was asked to forgo performing

       her due diligence. Rather, Esserman alleged that she “knew [the claims]

       contained fraudulent charges[.]” Appellant’s App., Vol. II at 62. The IFCA

       defines “knowingly” as having actual knowledge of the information, acting in

       deliberate ignorance of the truth or falsity of the information, or acting in

       reckless disregard of the truth or falsity of the information. Ind. Code 5-11-5.5-

       1(4). Therefore, Esserman possessed the requisite mens rea to be personally

       liable under the statute and the next question becomes whether Esserman’s




       may be dismissed, demoted, disciplined, or transferred for any reason that does not contravene public
       policy.” Ind. Code § 4-15-2.2-24(b). Indiana Code section 4-15-2.2-42(f) further provides:
             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.
       And, as our supreme court held in McClanahan, “firing an employee for refusing to commit an illegal act for
       which he would be personally liable is as much a violation of public policy declared by the legislature as
       firing an employee for filing a workmen’s compensation claim.” 517 N.E.2d at 393.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                   Page 18 of 29
       approval of a claim would constitute “presenting” a claim under the IFCA.6 See

       Ind. Code § 5-11-5.5-2(b)(1).


[15]   The crux of the SEAC’s grant of summary judgment and IDEM’s argument on

       appeal can be summarized as: because Esserman was not the person originally

       “presenting” a false claim, or benefiting from its payment, she could not be

       liable under the statute. See Appellee’s Brief at 27-30; Appellant’s App., Vol. II

       at 58-59, ¶ 15, 17. However, the relevant provision of the IFCA applies to

       persons who “present[] a false claim to the state for payment or approval[.]”

       Ind. Code § 5-11-5.5-2(b)(1) (emphasis added). Nothing in Indiana Code

       section 5-11-5.5-2 exempts state employees from personal liability under the

       statute and, had the legislature so intended, it certainly knew how to do so.

       Furthermore, nothing in the statute requires the person presenting the claim for

       payment or approval to be the beneficiary of the claim. In the absence of these

       two limitations, we are unaware of any reason state employees knowingly or

       intentionally approving claims with “fraudulent charges[,]” Appellant’s App.,

       Vol. II at 62, and then presenting those claims for payment, would not be




       6
        “Presents” is not defined within the IFCA. See Ind. Code § 5-11-5.5-1. Undefined words in a statute or
       ordinance are given their plain, ordinary, and usual meaning. Ind. Code § 1-1-4-1(1) (“Words and phrases
       shall be taken in their plain, or ordinary and usual, sense.”) “In determining the plain and ordinary meaning
       of a term, courts may use English language dictionaries as well as consider the relationship with other words
       and phrases.” Flying J., Inc. v. City of New Haven, Bd. of Zoning Appeals, 855 N.E.2d 1035, 1040 (Ind. Ct. App.
       2006), trans. denied. In this context, “present” is defined as “to bring, offer, or give, often in a formal or
       ceremonious way;” or “to hand over or submit, as a bill or a check, for payment[.]” Dictionary.com,
       https://www.dictionary.com/browse/present (last visited April 3, 2019).



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                      Page 19 of 29
       subject to personal liability under the statute.7 Accordingly, we believe

       Esserman sufficiently pleaded a violation of the law for which she could have

       been subject to personal liability had she not refused to do so. The SEAC’s

       grant of summary judgment on such an interpretation was therefore clearly

       erroneous. Sanchez, 18 N.E.3d at 992.


                                           B. Designated Evidence
[16]   IDEM focused its arguments on summary judgment and appeal on the question

       of whether Esserman’s allegations could have subjected her to personal liability

       under the IFCA. Having concluded Esserman’s allegations could have

       subjected her to personal liability but mindful that a grant of summary

       judgment is sustainable upon any theory supported by the designated evidence,

       see Miller v. Danz, 36 N.E.3d 455, 456 (Ind. 2015), we turn to the question of

       whether IDEM “affirmatively negate[d]” Esserman’s claim on summary

       judgment, Hughley, 15 N.E.3d at 1003. We conclude that IDEM did not.


[17]   In support of its motion for summary judgment, IDEM designated the

       following evidence: (1) Esserman’s civil service employee complaint along with

       five letters sent by Esserman’s counsel to various IDEM employees/entities

       incorporated as exhibits; (2) Esserman’s termination letter; and, (3) a copy of

       the SEAC opinion in Meeks v. INDOT, SEAC No. 12-13-106 (Jan. 21, 2014).




       7
        We note that the IFCA’s requisite mens rea, “knowingly or intentionally,” serves to shield innocent
       mistakes within an employee’s job duties. Ind. Code § 5-11-5.5-2(b).



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                   Page 20 of 29
       See Appellant’s App., Vol. III at 62. Notably, while it appears that Esserman

       did not designate any evidence in response to IDEM’s motion for summary

       judgment,8 such an obligation arises only after IDEM first “demonstrate[s] the

       absence of any genuine issue of fact as to a determinative issue.” Hughley, 15

       N.E.3d at 1003.


[18]   Although the termination letter set forth a legitimate reason for Esserman’s

       termination, it failed to affirmatively negate Esserman’s claim. Indeed, the very

       essence of Esserman’s claim was that IDEM’s proffered explanation for her

       termination was duplicitous of its true motivation, i.e., that she was terminated

       for refusing to break the law. IDEM could have designated evidence in the

       form of an affidavit, Esserman’s employment records, or other evidence that

       tended to prove Esserman was not terminated for such a reason. See Converse v.

       Elkhart General Hospital, Inc., 120 N.E.3d 621, 626 (Ind. Ct. App. 2019).

       However, because it failed to do so, “[t]he question of the existence of a

       retaliatory motive for a discharge is a question for the trier of fact.” McGarrity v.

       Berlin Metals, Inc., 774 N.E.2d 71, 79 (Ind. Ct. App. 2002), trans. denied.

       Accordingly, the grant of summary judgment in IDEM’s favor was improper.9




       8
         As noted above, see supra n.1, the record clearly indicates that Esserman filed a response to IDEM’s motion
       for summary judgment but Esserman’s response is not included in the Appellant’s or Appellee’s Appendices.
       See, e.g., Appellant’s App., Vol. II at 49, 58.


       9
         Because we conclude genuine issues of material fact on Esserman’s claim of wrongful discharge for refusal
       to break the law remain regarding the IFCA, we need not address the alternative theories of fraud, theft,


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                    Page 21 of 29
                                     III. Substantial Evidence
[19]   Esserman also argues the SEAC’s decision was not supported by substantial

       evidence. Specifically, she contends that substantial evidence demonstrates that

       her termination was related to her disabilities, request for accommodations, and

       unrelated to the quality of her work; she was retaliated against for reporting

       sexual harassment and ghost employment; she was given contradictory

       instructions and management did not account for her absences; she was

       terminated for her refusal to “rubber stamp” claims; and her negative 2013

       performance appraisal contains mistakes concealed by her supervisor. Brief of

       Appellant at 3.


[20]   Our standard for reviewing administrative agency decisions is well settled.

       Whirlpool Corp. v. Vanderburgh Cty.-City of Evansville Human Relations Comm’n,

       875 N.E.2d 751, 759 (Ind. Ct. App. 2007). To determine whether an

       administrative decision is supported by substantial evidence, a trial court must

       examine the whole record to determine whether the decision “lacks a

       reasonably sound basis of evidentiary support.” 255 Morris, LLC v. Ind. Alcohol

       & Tobacco Comm’n, 93 N.E.3d 1149, 1153 (Ind. Ct. App. 2018).


               [This court] may not substitute [its] judgment on factual matters
               for that of the agency and [is] bound by the agency’s findings of
               fact if [the findings] are supported by substantial evidence. [We]




       and/or deception. See D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1134 n.4 (Ind. Ct. App. 2018), trans.
       denied. For the same reason, we also need not address Esserman’s argument regarding the exclusion of
       evidence. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                   Page 22 of 29
               review the record in the light most favorable to the administrative
               proceedings and are prohibited from reweighing the evidence or
               judging the credibility of witnesses.


       Id. (quotation omitted).


[21]   Substantial evidence is defined as “more than speculation and conjecture yet

       less than a preponderance of evidence. Substantial evidence means such

       relevant evidence as a reasonable mind might accept as adequate to support a

       conclusion.” State v. Mills, 76 N.E.3d 861, 870 (Ind. Ct. App. 2017), trans.

       denied. Based on our review of the record, we conclude that the SEAC’s

       decision that Esserman’s termination was unrelated to her disabilities,

       accommodation requests, or sexual harassment complaint was supported by

       substantial evidence. Therefore, the trial court did not err in this respect.


                                        A. Disability Claims
[22]   Esserman claims she was retaliated against because of her disability and

       necessary accommodations. In November 2012, Esserman met with the

       Indiana State Personnel Department (“SPD”) to discuss accommodations for

       her disabilities. At that time, Esserman notified SPD that her disabilities caused

       her to use the restroom frequently. She was terminated in January 2014.


[23]   A prima facie case of disability discrimination in employment is established

       when a plaintiff proves: (1) he or she is disabled within the meaning of the

       Americans with Disabilities Act; (2) his or her work performance met the

       employer’s legitimate expectations; (3) an adverse employment action; and (4)


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 23 of 29
       “the circumstances surrounding the discharge indicate it is more likely than not

       that [the] disability was the reason for discharge.” Powdertech, Inc. v. Joganic,

       776 N.E.2d 1251, 1256 (Ind. Ct. App. 2002). There is no dispute that Esserman

       meets the first and third elements. However, the ALJ found that her work did

       not meet IDEM’s legitimate expectations and the circumstances of her

       termination did not point to her disability as the reason for termination.

       Relevant evidence in the record supports such a conclusion.


[24]   The ALJ also concluded that Esserman was not retaliated against because she

       had a disability or for being accommodated, conclusions also supported by

       substantial evidence in the record. To prove retaliation, Esserman must

       demonstrate that (1) she engaged in statutorily protected activity; (2) she

       suffered a material adverse action; and (3) there is a causal link between the

       two. Gaff v. Indiana-Purdue Univ. of Fort Wayne, 51 N.E.3d 1163, 1166 (Ind.

       2016). The ALJ determined that Esserman was terminated due to poor

       performance rather than her disabilities or accommodations.


[25]   Peggy Dorsey, Deputy Assistant Commissioner of IDEM, testified to

       Esserman’s performance issues. Dorsey stated that Esserman was not held

       responsible for work while she was on family medical leave. Instead, Esserman

       was responsible for work that was assigned while she was at the agency and

       Esserman failed to finish work that should have been complete weeks or

       months before she went on leave. Dorsey explained, “These documents were

       very delinquent, not just a few days. There weren’t tight time frames when



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 24 of 29
       [Esserman] received these documents. She had plenty of time.” Appellant’s

       App., Vol. II at 149.


[26]   According to Bobbi Steiff, Esserman’s supervisor and section chief of ELTF,

       claims are required to be processed within sixty days pursuant to statute. When

       Esserman returned to work part-time in June 2013, Steiff told Esserman she had

       two weeks to complete one week’s work given her part-time schedule, but

       Esserman failed to meet expectations and did not work efficiently. In 2013, a

       monthly quota of reviewing $1.4 million in claims was implemented for all

       senior environmental managers, including Esserman. Although the other

       SEMs were meeting expectations, Esserman was not. Steiff explained that she

       did take into account Esserman’s approved leave in Esserman’s 2013

       performance evaluation, the purported basis for her termination. Specifically,

       the evaluation was prorated based on the number of hours Esserman worked,

       including sick and vacation days. See id. at 179. In fact, IDEM’s policy was to

       adjust an employee’s performance expectations to account for any family

       medical leave. Id. at 199. Although Steiff testified that she erred by including

       two expectations in the 2013 appraisal that should have been omitted,

       Esserman’s overall rating, namely “does not meet expectations,” would not

       change despite the mistake and she still failed to meet her top priorities.


[27]   Bruce Palin, Assistant Commissioner of IDEM, testified that he recommended

       Esserman’s termination for failure to meet performance expectations

       repeatedly. Similarly, Kent Abernathy, former chief of staff of IDEM, stated

       that Esserman’s performance consistently fell “significantly below” the goals.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 25 of 29
       Id. at 199. Craig Schroer, the branch chief, also testified that Esserman failed

       to achieve the quantity measures despite being capable of meeting the monthly

       goals. In a meeting, Shroer informed Esserman that the basis for her

       termination was her inadequate performance and he specifically demonstrated

       that she was not meeting quotas. Additionally, he was of the opinion that

       Esserman was “unwilling to follow the direction of her supervisor as to how to

       do claim reviews and senior [quality control] reviews.” Id. at 164.


[28]   Furthermore, there is no evidence that Esserman was ever denied the

       accommodations she requested, a fact Esserman admits, and she indicated in

       her meeting with SPD she did not believe her frequent trips to the restroom

       impacted her work. In 2012, Esserman was placed on a Work Improvement

       Plan (“WIP”); however, the WIP was suspended while her accommodations

       were being addressed and the WIP was not reinstated. Despite the

       accommodations and a prorated evaluation, accounting for Esserman’s

       approved leave, she was unable to meet IDEM’s expectations. Therefore, the

       evidence in the record supports the ALJ’s determination that Esserman’s

       termination was unrelated to her disabilities or accommodations.10




       10
         Although not raised in her brief, the ALJ concluded Esserman’s “cat’s paw” theory of liability failed,
       concluding “there was no animus on the part of [IDEM] that affected the decision to terminate [Esserman]
       and that the decision to terminate was based solely on [Esserman’s] inability to perform the work assigned to
       her.” Appellant’s App., Vol. II at 29. Substantial evidence also supports this conclusion.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019                    Page 26 of 29
                              B. Sexual Harassment Complaint
[29]   To prove a retaliation claim for reporting sexual harassment, Esserman must

       demonstrate the following essential elements: (1) she engaged in statutorily

       protected activity; (2) she suffered a material adverse action; and (3) there is a

       causal link between the two. Gaff, 51 N.E.3d at 1166. There is no dispute that

       Esserman engaged in protected activity in filing a complaint of sexual

       harassment and that she ultimately suffered a material adverse employment

       action, namely termination. However, the ALJ determined that Esserman

       failed to establish a causal connection between her complaint and

       termination. Specifically, the ALJ found that the timing in the case did not

       help to establish a causal link between the complaint and termination.


[30]   A causal nexus may be established through direct evidence or through a

       “convincing mosaic of circumstantial evidence permitting that same

       inference.” Jajeh v. Cty. of Cook, 678 F.3d 560, 570 (7th Cir. 2012) (internal

       quotation omitted). There are three categories of circumstantial evidence under

       this approach: “(1) suspicious timing, ambiguous statements and other bits and

       pieces from which an inference of retaliatory intent might be drawn; (2)

       evidence that similarly situated employees were treated differently; and (3)

       evidence that the employer offered a pretextual reason for an adverse

       employment action.” Id.


[31]   With respect to Esserman’s sexual harassment claim, IDEM contends the

       “timeline of this case demonstrates how Esserman’s sexual harassment

       complaint is distant both in time and space from her termination.” Appellee’s
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 27 of 29
       Br. at 37. However, Esserman maintains that the finding that the “separation in

       time between the original complaint and the termination negates any causal

       connection between the two does not comport with the facts.” Br. of Appellant

       at 44.


[32]   The evidence in the record reveals that Esserman filed a sexual harassment

       complaint on May 19, 2011, and was fired over two and one-half years later on

       January 17, 2014. After filing her complaint, Esserman was on leave for six

       months during which time SPD investigated Esserman’s complaint. On

       November 30, 2011, SPD concluded its investigation and determined the

       alleged behavior was not “[i]nappropriate [c]onduct” and Esserman was not

       sexually harassed. Appellant’s App., Vol. II at 231. Although Esserman’s

       supervisor recommended that Esserman be terminated, IDEM Commissioner

       Easterly believed Esserman could potentially be successful at the agency in

       another position. As a result, Esserman was not terminated at that time but

       rather transferred to ELTF. After her transfer, Esserman continued to receive

       poor performance appraisals in 2011, 2012, and 2013. Even prior to her

       complaint, Esserman’s 2009 performance appraisal indicated her overall

       performance rating was “needs improvement.” Appellee’s App., Vol. II at 25.

       Ultimately, she was terminated in 2014 due to her most recent poor

       performance in 2013.


[33]   In sum, there is substantial evidence in the record to support SEAC’s decision

       that Esserman’s termination was unrelated to her disabilities, accommodations,

       or sexual harassment complaint. The bulk of Esserman’s argument amounts to

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 28 of 29
       an invitation for this court to reweigh the evidence, which we will not do. 255

       Morris, LLC, 93 N.E.3d at 1153. The trial court did not err in concluding

       SEAC’s decision was supported by substantial evidence.



                                              Conclusion
[34]   For the reasons set forth above, we conclude the trial court erred in affirming

       the SEAC’s grant of partial summary judgment, but the trial court did not err in

       concluding the SEAC’s decision determining that Esserman’s termination was

       unrelated to her disabilities, accommodations, or sexual harassment complaint

       was supported by substantial evidence. We therefore reverse in part, affirm in

       part, and remand to the trial court for further proceedings consistent with this

       opinion.


[35]   Reversed in part, affirmed in part, and remanded.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019   Page 29 of 29
