                                                                         Dec 31 2015, 9:42 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Daniel L. Brown                                           Douglas A. Hoffman
      Salem, Indiana                                            Jeremy M. Dilts
                                                                Carson Boxberger
                                                                Bloomington, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Daniel Harris,                                            December 31, 2015

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                59A05-1501-CT-37
              v.                                                Appeal from the Orange Circuit
                                                                Court
      Donald Brewer, Donald                                     Trial Court Cause No.
                                                                59C01-1401-CT-4
      Crockett, and Thomas Lamb,
      Orange County Commissioners                               The Honorable John T. Evans,
                                                                Special Judge
      as governing body of the Orange
      County Highway Department,
      Appellees-Defendants.




      Pyle, Judge.


                                        Statement of the Case
[1]   Appellant/Plaintiff, Daniel Harris (Harris), appeals the trial court’s grant of

      summary judgment in favor of Donald Brewer, Donald Crockett, and Thomas

      Lamb, Orange County Commissioners, as governing body of the Orange
      Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015                Page 1 of 26
      County Highway Department (“Highway Department”) (collectively, “Orange

      County”), on Harris’s claims of wrongful termination and defamation. Harris

      was terminated from his employment with the Highway Department as a result

      of his alleged consumption of alcohol prior to operating a Highway Department

      vehicle. He subsequently filed wrongful termination and defamation claims,

      amongst others, against Orange County. Orange County filed a motion for

      summary judgment on the claims, and the trial court granted the motion.


[2]   On appeal, Harris argues that the trial court erred in granting summary

      judgment on both claims. With respect to his wrongful termination claim, he

      asserts that the trial court should have ruled that he was not an at-will employee

      because it should have interpreted the Orange County Highway Department’s

      Handbook of Personnel Policy (“the Handbook”) as a valid unilateral

      employment contract stipulating that Harris’s employment could only be

      terminated for just cause. Alternatively, Harris argues that even if the

      Handbook did not constitute a valid employment contract, an exception to

      Indiana’s presumption of employment-at-will applied to him. With respect to

      his defamation claim, Harris asserts that the trial court erred in granting

      summary judgment because there were still genuine issues of material fact

      remaining for the factfinder to resolve.


[3]   On cross-appeal, Orange County argues that the trial court erred in denying its

      motion to strike portions of the evidence Harris designated in his response to

      Orange County’s motion for summary judgment.



      Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 2 of 26
[4]   We affirm the trial court’s grant of summary judgment on Harris’s wrongful

      termination claim because: (1) the Handbook did not constitute a valid

      unilateral contract; and (2) an exception to the employment-at-will doctrine did

      not apply to Harris. We also affirm the trial court’s grant of summary judgment

      on Harris’s defamation claim because Orange County had a qualified privilege

      to deliver Harris’s termination letter and there were no genuine issues of

      material fact. As we also conclude that the evidence Orange County challenges

      in its cross-appeal is not dispositive, we need not address whether the trial court

      erred in denying Orange County’s motion to strike evidence.


[5]   We affirm.


                                                     Issues
                                                    APPEAL

              Whether the trial court erred in granting summary judgment in
              favor of Orange County on Harris’s wrongful termination and
              defamation claims.


                                              CROSS-APPEAL

              Whether the trial court erred when it denied Orange County’s
              motion to strike portions of Harris’s designated evidence.

                                                      Facts
[6]   In 2013, Harris was employed by the Highway Department. Pursuant to his

      employment, he was assigned a Highway Department truck that he was

      allowed to take home after work. On August 7, 2013, an anonymous caller

      reported to the Indiana State Police that Harris was “driving a county highway
      Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 3 of 26
truck with a female passenger while intoxicated and was yelling out the

window.” (App. 68). Indiana State Trooper Michael Allen (“Trooper Allen”)

and another officer drove to Harris’s residence to investigate. Trooper Allen

later reported:


        Deputy Shipman and I drove up to his residence . . . and located
        a 2005 White Chevy truck with Municipal Plate 68133 sitting in
        the driveway. I felt the hood of the truck[,] and it was still hot.
        Mr. Harris exited his residence and asked what was going on. I
        explained to him that we had a complaint of him driving the
        County truck by the Sprint gas station while intoxicated and
        yelling out the window. Mr. Harris stated that he ha[d] not been
        to town but was in Mitchell earlier after work. He stated he
        drove the truck around 9:00 [p.m.] to the backside of his
        residence but denied being on the roadway. As I spoke to Mr.
        Harris I could smell [an] odor of an alcoholic beverage coming
        from his breath[,] and his eyes were very glossy. I did not
        observe any other signs of impairment. I asked him how much
        he had to drink[,] and he stated that he had been drinking since
        he got off work. I did give Mr. Harris a portable breath test[,]
        which tested positive for alcohol (.05)[.] I then told him I was
        going back to the Sprint gas station to pull the video of the time
        frame given to see if he was in fact there. He then stated that he
        forgot but he did go to the gas station to get cigarettes in the
        Company Vehicle. Mr. Harris then stated he had only [o]ne beer
        contrary to what he stated earlier. No charges were filed [] due
        to my observation that Mr. Harris was not intoxicated at the time
        of my contact with him. I did look inside the vehicle and there
        [were] no open containers[.]


(App. 68). The next day, Orange County sent Harris a letter stating that his

employment with the Highway Department was terminated, effective



Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 4 of 26
      immediately, due to Harris’s “admission” to the troopers that he had driven a

      county highway truck “after drinking alcohol.” (App. 69).


[7]   On January 9, 2014, Harris filed a complaint against Orange County seeking

      declaratory and injunctive relief. He claimed that Orange County had violated

      Indiana’s open door law because it had not held a public meeting when it

      discussed terminating his employment. On March 21, 2014, Harris filed an

      amended complaint adding additional wrongful termination claims, as well as a

      defamation claim. With respect to the defamation claim, he argued that the

      allegations in his termination letter were defamatory and that Orange County

      had published the allegations because the letter was a public record. As a result

      of this asserted publication, Harris claimed that the allegations had damaged his

      reputation in the community and his ability to obtain further employment.


[8]   On August 27, 2014, Orange County filed a motion for summary judgment. It

      argued that there were no genuine issues of material fact left to determine

      because: (1) Harris’s open door claim had been untimely; (2) Harris had been

      an at-will employee at the time of his termination and, therefore, his

      employment had not been wrongfully terminated; and (3) it had not defamed

      Harris because the allegations in Harris’s termination letter were true; he had

      been the only recipient of the letter; and Orange County had possessed a

      qualified privilege to write and deliver the letter, which was a defense to

      defamation.




      Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 5 of 26
[9]    Harris filed a response to the motion for summary judgment, arguing that the

       trial court should deny the motion because there were still genuine issues of

       material fact left to decide, including whether: (1) Harris had operated the

       county truck while, or after, drinking; (2) the Handbook constituted a valid

       unilateral contract providing that Harris’s employment could only be

       terminated for just cause; and (3) one of the exceptions to the employment-at-

       will doctrine applied to Harris if the Handbook did not constitute a contract.

       Harris tendered designated evidence with his response, including an affidavit

       containing his version of the events that had occurred on the night of August 7,

       2013; a political endorsement titled “Political Endorsement—Indiana

       Republican State Committee” (“political endorsement”); an explanation of the

       political endorsement, which presumably accompanied it; and the Handbook.1

       (App. 71).


[10]   In Harris’s affidavit, he recounted his version of the events that had occurred on

       the night of August 7, 2013. He averred that he had returned home from work

       that night after running errands. He said that, for the next hour, he had worked

       on a plumbing problem at his house. Then, at 7:00 p.m., he had gone with his

       wife to a Sprint Station in Orleans. He said that when he pulled into the Sprint

       Station, a black SUV had pulled in front of him and had almost hit him. As a

       result, Harris had blown his horn and yelled at the SUV. Thereafter, according




       1
        Harris’s affidavit did not establish any context or foundation for the political endorsement or its
       explanation.

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015                             Page 6 of 26
       to Harris, his wife had purchased cigarettes at the store, and they had returned

       home around 8:00 p.m. Then, at 9:00 p.m., he had moved the county truck to

       the back of his residence. He averred that he had not at any point driven the

       county truck on the roadway after consuming alcoholic beverages. He also

       averred that when he returned to the Highway Department to take possession

       of his personal tools and toolbox, several employees commented to him that

       they had heard rumors and that he had “gotten the short end of the stick.”

       (App. 47).


[11]   The political endorsement that Harris designated was a form from the Indiana

       Republican State Committee documenting Harris’s political party, the fact that

       he had voted in the previous primary election, and the county in which he had

       voted. It also contained Harris’s contact information and was signed by the

       Republican State Committee’s Precinct Commissioner, Vice Commissioner,

       County Chair, and Vice Chair. The form also explicitly provided that: “This is

       not an application for employment” and “[t]his completed card does not

       guarantee employment.” (App. 71).


[12]   The explanatory document that, presumably, accompanied Harris’s political

       endorsement explained that:


               Political endorsement is required for most non-merit government
               employment and appointments. The elected office-holder who is
               responsible for filling such positions is dependent upon political
               party organization for campaign assistance. For this reason, the
               office-holder asks party officials to endorse all persons who are
               hired for non-merit jobs. Political endorsement will be valid for

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 7 of 26
               either one calendar year or the length of time the applicant
               remains in continuous state employment.
               If you are not now registered to vote, please do so in the county
               of your residence before requesting political endorsement. You
               can obtain the name and address of the required signatories by
               contacting your Republican County Chairman. Start the
               endorsement procedure by first contacting your precinct vice-
               committeeman and secure all endorsements 1 through 6. Return
               the completed card to the state agency or county chairman who
               furnished you the card. They will forward the card to State
               Headquarters for the State Chairman’s endorsement.


       (App. 72).


[13]   On December 8, 2014, Orange County filed a reply, in which it included a

       motion to strike the political endorsement and a portion of Harris’s affidavit.

       Orange County argued that Harris had not authenticated the political

       endorsement and that it was inadmissible hearsay. In addition, Orange County

       asserted that Harris’s affidavit contained inadmissible hearsay statements such

       as the statements from Harris’s co-workers regarding his termination and

       Harris’s own statement that he did not consume any alcohol before driving the

       county truck. Orange County argued that Harris’s statement was inadmissible

       because it contradicted his prior admission to Trooper Allen that he had

       consumed alcohol and because contradictory testimony by a non-movant may

       not be used to defeat a summary judgment motion where the only issue of fact

       raised by the affidavit is the credibility of the affiant.




       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 8 of 26
[14]   On January 5, 2015, the trial court denied the motion to strike and entered a

       general grant of summary judgment in Orange County’s favor on all three

       claims. Harris now appeals.


                                                    Decision
[15]   On appeal, Harris challenges the trial court’s grant of summary judgment to

       Orange County on his wrongful termination and defamation claims but not his

       open door claim. With respect to his wrongful termination claim, he argues

       that the Handbook was a valid unilateral contract such that Orange County

       could only terminate his employment for just cause. Alternatively, he asserts

       that even if, as Orange County claimed, the Handbook was not a contract and

       he was an at-will employee at the time of his termination, an exception to the

       employment-at-will doctrine applied to him. Finally, Harris argues that the

       trial court erred in granting summary judgment on his defamation claim

       because there were still genuine issues of material fact left for the factfinder to

       determine.


[16]   On cross-appeal, Orange County argues that the trial court erred when it denied

       Orange County’s motion to strike a portion of Harris’s designated evidence.

       Specifically, Orange County asserts that Harris’s statement in his affidavit that

       “[w]hen I returned to the Orange County Highway Department to take

       possession of my personal tools and toolbox, several employees commented to

       me that they had heard rumors and that I had ‘gotten the short end of the

       stick’” was inadmissible hearsay that the trial court should have struck. (App.

       47).
       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 9 of 26
[17]   When reviewing a trial court’s grant of summary judgment, we apply the same

       standard as the trial court. Carroll Creek Dev. Co., Inc. v. Town of Huntertown, 9

       N.E.3d 702, 708 (Ind. Ct. App. 2014). Summary judgment is appropriate only

       where the designated evidence 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.” Id. (citing Ind. Trial Rule 56(C)). The movant “bears the initial burden

       of making a prima facie showing that there are no genuine issues of material

       fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville Sheet

       Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). Summary judgment is

       improper if the movant fails to carry this burden. Id. However, if the movant

       succeeds, then the nonmoving party must come forward with evidence

       establishing the existence of a genuine issue of material fact. Id. We view the

       facts in the light most favorable to the non-movant. Orr v. Westminster Village

       North, Inc., 689 N.E.2d 712, 717 (Ind. 1997). Where, as here, the defendant is

       the moving party, the defendant must demonstrate that the undisputed facts

       negate at least one element of the plaintiff’s cause of action or that the

       defendant has a factually unchallenged affirmative defense that bars the

       plaintiff’s claim. Bradley v. Hall, 720 N.E.2d 747, 750 (Ind. Ct. App. 1999).


       1. Wrongful Termination

[18]   On appeal, Harris argues that the trial court erred when it granted summary

       judgment on his wrongful termination claim. Harris’s wrongful termination

       claim depends, in part, on whether he qualified as an at-will employee. Indiana

       follows the doctrine of employment-at-will, under which employment may be

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 10 of 26
       terminated by either party at will, with or without a reason. Ogden v. Robertson,

       962 N.E.2d 134, 145 (Ind. Ct. App. 2012), trans. denied. There is a strong

       presumption that employment in Indiana is at-will. Id. However, if the parties

       choose to include a clear job security provision in an employment contract, the

       presumption that the employment is at-will may be rebutted. Wynkoop v. Town

       of Cedar Lake, 970 N.E.2d 230, 235 (Ind. Ct. App. 2012), trans. denied. In such a

       case, the employer generally may not terminate the employment relationship

       before the end of the term except for just cause or by mutual agreement. Orr,

       689 N.E.2d at 717. The wrongful discharge of a contract-bound employee gives

       rise to a cause of action for breach of contract. Remington Freight Lines, Inc. v.

       Larkey, 644 N.E.2d 931, 940 (Ind. Ct. App. 1994), as clarified on denial of reh’g.

       To prevail on a wrongful discharge claim, a contract-bound employee must

       prove that he or she had a contract of employment for a specific duration that

       was improperly terminated. Ewing v. Bd. of Trustees of Pulaski Mem’l Hosp., 486

       N.E.2d 1094, 1098 (Ind. Ct. App. 1985), reh’g denied, trans. denied.

[19]   If an employment contract for an ascertainable term of employment does not

       exist, an exception to the employment-at-will doctrine may apply. Our

       supreme court has recognized three exceptions to the employment-at-will

       doctrine: (1) if an employee establishes that “adequate independent

       consideration” supports the employment contract; (2) if a clear statutory

       expression of a right or duty is contravened; and (3) if the doctrine of

       promissory estoppel applies. Orr, 689 N.E.2d at 718. When an exception to the

       employment-at-will doctrine applies, an employer may be liable for wrongful


       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 11 of 26
       discharge for discharging an employee without just cause. See McGarrity v.

       Berlin Metals, Inc., 774 N.E.2d 71, 76 (Ind. Ct. App. 2002) (stating that an at-will

       employee “allegedly fired for refusing to commit an unlawful act for which he

       would be personally liable may bring a cause of action for wrongful discharge”);

       Steele v. McDonald’s Corp., 686 N.E.2d 137, 141 (Ind. Ct. App. 1997) (“[W]here

       an employee gives independent consideration for an employment contract . . .

       the employer may terminate the employee only for good cause. . . . [An]

       employee states a cause of action for wrongful or retaliatory discharge where he

       is discharged for exercising a statutorily conferred right or duty.”), reh’g denied,

       trans. denied. However, unlike the wrongful discharge of a contract-bound

       employee, the wrongful discharge of an at-will employee gives rise to an action

       in tort. Remington, 644 N.E.2d at 940.


[20]   Here, Harris did not have an employment contract for a definite or

       ascertainable term. However, he argues that the Handbook, disseminated by

       Orange County, contained job security promises from Orange County such that

       it constituted a unilateral employment contract requiring Orange County to

       have just cause to terminate his employment. Alternatively, he argues that one

       of the exceptions to the employment-at-will doctrine applied to him.

           A. The Handbook

[21]   Harris’s first argument, that the Handbook constituted a valid unilateral

       contract, is based on the Illinois Supreme Court’s opinion in Duldulao v. Saint

       Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (Ill. 1987). There, the Illinois

       Supreme Court held that an employee handbook may constitute a unilateral

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 12 of 26
       employment contract binding an employer if three conditions are met: (1) the

       language of the employee handbook contains a promise clear enough that an

       employee would reasonably believe that an offer had been made; (2) the

       handbook is disseminated to the employee in such a manner that the employee

       is aware of its contents and reasonably believes it to be an offer; and (3) the

       employee accepts the offer by commencing or continuing work after learning of

       the terms of the handbook. Duldulao, 505 N.E.2d at 318. Although Indiana

       courts have addressed Duldulao in Orr and several subsequent cases, we have

       never adopted the Duldulao factors or otherwise held that an employee

       handbook may constitute a unilateral employment contract. See, e.g., Orr, 689

       N.E.2d at 721; McCalment v. Eli Lilly & Co., 860 N.E.2d 884, 893 (Ind. Ct. App.

       2007). Nevertheless, Harris argues that the Handbook here differs from the

       employee handbooks we have considered to date, such that we should re-

       consider Duldulao and find the Handbook to be a binding unilateral contract.


[22]   The Handbook here contains phrases that implicate both employment for an

       ascertainable period of time and “at-will” employment, which are seemingly

       contradictory. Specifically, one of the Handbook’s provisions stipulates that

       failure of any employee to adhere to the Highway Department’s Code of Ethics

       will result in “immediate dismissal.” (App. 60). In its “DISCIPLINE” section,

       the Handbook then provides that “[a]ll employees are ‘at will’” and that “[a]n

       employee is subject to discipline for just cause.” (App. 61). Finally, the

       “Termination” section of the Handbook contains two subsections—




       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 13 of 26
       “Mandatory Dismissal” and “Discretionary Dismissal.” (App. 62). The

       “Mandatory Dismissal” subsection provides that:


               An employee shall be discharged immediately without notice for
               misconduct of corporate policies or procedures, violations of
               state or federal laws and including, but not limited to the
               following:
                                                 *        *        *
                        7. Use, possession, or consumption, of alcoholic
                        beverages on the premises of the county . . .


       (App. 62) (emphasis added). Then, the “Discretionary Dismissal” subsection

       provides that:


               All county employees, other than those covered by merit board,
               serve at the will of the elected official for whom they work, and
               nothing in this personnel policy is intended, nor shall it be construed, as
               altering this “at will” employment status. Employees may be
               terminated at the pleasure and discretion of the elected official for
               whom they work, and no reason for termination shall be required,
               provided however, that no employee may be terminated for a
               legally impermissible reason.


       (App. 62-63) (emphasis added). Harris argues that, because the Handbook says

       that employees will be subject to discipline for “just cause,” the Handbook

       establishes that employment with the Highway Department is not at-will.


[23]   In Orr, our supreme court declined to hold that an employee handbook may

       constitute a unilateral contract or to adopt the Duldulao factors—although it did

       not foreclose the possibility of doing either in a later case—based on the facts of

       the case. Orr, 689 N.E.2d. at 721. The handbook at issue there did not contain
       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015      Page 14 of 26
       a statement that employees would be discharged only for just or good cause. Id.

       Instead, it expressly stated that: (1) while “in most cases, disciplinary action

       will begin with an oral warning . . . dismissal may occur immediately;” (2) the

       list of violations was “not intended to be all inclusive;” and (3) major violations

       could “result in immediate discharge without warning.” Id. In addition, the

       front of the handbook contained a disclaimer stating that the handbook was not

       a contract and that its terms could be changed at any time. Id. Based on these

       factors, the Orr Court reasoned that the language of the handbook did not

       contain a promise of employment security clear enough that an employee

       would reasonably believe that an offer had been made, as required by the first

       step under Duldulao. Id. As a result, it held that it need not decide whether to

       adopt Duldulao because the handbook at issue would not qualify as an

       employment contract, even under Duldulao. Id.


[24]   Thereafter, in McCalment, we addressed whether an employee handbook that

       had internally contradictory provisions constituted a valid unilateral contract.

       There, Eli Lilly & Co. (“Lilly”) terminated McCalment’s employment without

       following the grievance procedures outlined in its employee handbook.

       McCalment, 860 N.E.2d at 888. As a result, McCalment filed a breach of

       contract claim arguing that Lilly’s employee handbook was a valid contract that

       bound Lilly to the termination procedures it had specified. Id. at 891. In

       support of this argument, McCalment noted that the handbook “devot[ed]

       [forty] pages to explaining [sic] how Lilly [would] treat its employees fairly

       based on merit” and only spent “two paragraphs . . . contradictorily and

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 15 of 26
       ambiguously say[ing] [that] the Handbook ‘[was] not a contact of employment’

       and [that] either Lilly or the employee [could] end the relationship when they

       want[ed].” Id. at 893. On appeal of the trial court’s denial of McCalment’s

       breach of contract claim, we held that in light of “Orr’s reaffirming of the

       validity of the [at-will] doctrine and the disclaimer [in the handbook],” we

       could not say that the handbook contained a promise clear enough that an

       employee would reasonably believe that Lilly had made an offer of employment

       security. Id. In other words, even though Lilly’s handbook focused on the

       measures it would take to treat its employees fairly, the contradictory provisions

       indicated that Lilly had not made a clear promise of employment security.


[25]   After McCalment, we again considered the issue of whether an employee

       manual might constitute a valid contract in Wynkoop. The employee handbook

       at issue there contained a provision stating that, “In the event that disciplinary

       action must be taken against an employee, it will be for just cause.” Wynkoop,

       970 N.E.2d at 236. Wynkoop argued that this provision was a promise from

       his employer, the Town of Cedar Lake, that it would only terminate his

       employment for “just cause.” Id. We disagreed, noting that the quoted

       language did not “explicitly assure disciplinary action ‘only’ for just cause” and

       that other portions of the handbook emphasized the at-will nature of the

       employment. Id. Based on our review of the employee handbook as a whole,

       including the provisions regarding at-will employment, we concluded that the

       Town of Cedar Lake had not made a clear promise that employees would be

       terminated only for just cause. Id.

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 16 of 26
[26]   In light of these precedents, we decline Harris’s invitation to adopt Duldulao

       because, even if we were to adopt Duldulao, the Handbook would not constitute

       a valid unilateral contract as it does not contain a clear promise of secure

       employment. The overwhelming emphasis of the Handbook’s provisions is that

       employment with the Highway Department is “at-will” and that dismissal may

       occur “immediately.” (App. 61-62). Even though, as Harris notes, the

       Handbook also states that an employee is subject to discipline for “just case,”

       we find it significant that, as in Wynkoop, the provision does not explicitly state

       that discipline will occur only for just cause. See Wynkoop, 970 N.E.2d at 236.

       In addition, Harris attempts to distinguish the Handbook from past precedent

       by noting that it does not contain a disclaimer, as the Handbook in Orr did, nor

       a definition of “at-will” employment. Regardless of those factors, however, the

       Handbook’s stipulations that employment is “at-will” and may be terminated

       “immediately” indicate that it did not make a clear promise that Harris’s

       employment would be terminated only for just cause.


           B. Exceptions to Employment-At-Will

[27]   Alternatively, Harris argues that, even if the Handbook did not constitute a

       valid unilateral contract, an exception to the presumption of at-will

       employment applied to him. As we stated above, our supreme court has

       recognized three exceptions to the employment-at-will doctrine: (1) if an

       employee establishes that “adequate independent consideration” supports the

       employment contract; (2) if a clear statutory expression of a right or duty is

       contravened; and (3) if the doctrine of promissory estoppel applies. Orr, 689

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 17 of 26
       N.E.2d at 718. Harris argues that the “independent consideration” and

       “promissory estoppel” exceptions apply to him. Alternatively, he argues that

       his employment should be excluded from the employment-at-will doctrine as a

       matter of public policy.


[28]   Harris’s first claim is that there was “independent consideration” supporting his

       employment because he provided his own tools to perform the work he did for

       the Highway Department and because he designated evidence that he had

       obtained a political endorsement for his employment. We have held that if an

       employee provides independent consideration for an employment contract,

       then the employer may terminate that employee only for good cause without

       incurring liability for its actions. Swan v. TRW, Inc., 634 N.E.2d 794, 797 (Ind.

       Ct. App. 1994), trans. denied. Indiana courts have identified different scenarios

       in which an employee’s act or forbearance might provide adequate independent

       consideration. Wior v. Anchor Industries, Inc., 669 N.E.2d 172, 175 (Ind. 1996),

       reh’g denied. For example, courts have held that giving up a competing business,

       conveying a valuable coal lease in exchange for employment, and releasing an

       employer from liability on a personal injury claim could all constitute adequate

       independent consideration. Id. (citing Ohio Table Pad Co. of Ind. v. Hogan, 424

       N.E.2d 144, 146 (Ind. Ct. App. 1981); Mt. Pleasant Coal Co. v. Watts, 151 N.E.7

       (Ind. Ct. App. 1926); and Toni v. Kingan & Co., 15 N.E.2d 80 (Ind. 1938)). In

       addition, we have held that adequate independent consideration existed when

       an employee had a former job with assured permanency and accepted a new




       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 18 of 26
       position only after receiving assurances guaranteeing similar permanency. Peru

       School Corp. v. Grant, 969 N.E.2d 125, 132 (Ind. Ct. App. 2012), trans. denied.


[29]   In contrast, “‘simply surrendering another job or moving to another location to

       accept a new position which the employee [has] sought, standing alone, does

       not constitute independent consideration.’” Id. (quoting Orr, 689 N.E.2d at

       718). The reason for this rule is that:


               in moving and/or giving up her prior job, the employee is merely
               placing herself in a position to accept new employment. There is
               no independent detriment to the employee because she would
               have had to do the same things in order to accept the job on any
               basis, and there is no independent benefit bestowed upon the
               employer.


       Ohio Table Pad Co. of Ind., 424 N.E.2d at 146. In general, “[i]t is only where a

       different and substantial detriment is incurred” that “separate consideration has

       been found to exist.” Whiteco Industries, Inc. v. Kopani, 514 N.E.2d 840, 844

       (Ind. Ct. App. 1987), trans. denied. Further, we have declined to find

       independent consideration to support an employment contract requiring just

       cause for termination where there is no evidence that the consideration was

       offered in exchange for permanent employment. See Swan, 634 N.E.2d at 797

       (finding that, even though employee had been influenced to accept a job based

       on retirement, insurance, and health benefits, there was no evidence that the

       employer offered permanent employment terminable only for just cause); see

       Orem v. Ivy Tech State College, 711 N.E.2d 864, 871 (Ind. Ct. App. 1999) (finding

       that employee bargained for specific position rather than for permanent

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 19 of 26
       employment where the contract did not contain a tenure provision), reh’g denied,

       trans. denied.


[30]   We conclude that neither Harris’s use of his own tools in his employment nor

       his political endorsement were adequate independent consideration for his

       employment because he did not designate any evidence showing that he offered

       either in exchange for a promise of permanent employment. See Swan, 634

       N.E.2d at 797; Orem, 711 N.E.2d at 871. To the contrary, the political

       endorsement explicitly states, “This completed card does not guarantee

       employment.” (App. 71). Likewise, Harris did not provide any explanation for

       the reason he provided his own tools. Accordingly, we conclude that the trial

       court did not err in finding that he did not provide independent consideration

       for his employment. Thus, this exception to the employment-at-will doctrine

       does not apply to Harris.


[31]   Alternatively, Harris argues that the promissory estoppel exception to the

       employment-at-will doctrine applied to his employment. Our supreme court

       has recognized that an employee may invoke the doctrine of promissory

       estoppel by “pleading the doctrine with particularity, demonstrating that the

       employer made a promise to the employee, the employee relied on the promise

       to his detriment, and the promise otherwise fits within the Restatement test for

       promissory estoppel.” Peru School Corp., 969 N.E.2d at 133-34 (citing Baker v.

       Tremco, Inc., 917 N.E.2d 650, 654 (Ind. 2009)). As noted in Peru School Corp.,

       the Restatement provides:



       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 20 of 26
               A promise which the promisor should reasonably expect to
               induce action or forbearance on the part of the promisee or a
               third person and which does induce such action or forbearance is
               binding if injustice can be avoided only by enforcement. The
               remedy granted for breach may be limited as justice requires.


       Id. at 133 (citing Restatement (Second) of Contracts § 90(1) (1981)).


[32]   Essentially, Harris’s promissory estoppel argument appears to have four

       interrelated components: (1) the Handbook promised that employees would be

       discharged immediately without notice for misconduct only if they used,

       possessed, or consumed alcoholic beverages on the county’s premises; (2) his

       truck did not fit within the definition of the county’s premises; (3) the County,

       therefore, violated its promise; and (4) the County thus also violated the

       Handbook’s promise that its contents would be “actively and consistently

       enforced.” (App. 50).


[33]   Harris’s arguments lack merit because they are based on several

       misinterpretations. With respect to the first component of his argument, we

       find that the Handbook did not promise that employees would be discharged

       for misconduct only if they committed the misconduct on the premises of the

       county. Instead, the provision that Harris cites explicitly stated that employees

       would be discharged immediately without notice for misconduct “including,

       but not limited to” the list of misconduct included in the Handbook, which

       included misconduct occurring on the premises of the county. (App. 62).

       Therefore, it is irrelevant whether Harris’s truck qualified as premises of the

       county as the Handbook did not limit the Highway Department’s ability to

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 21 of 26
       terminate its employees’ employment by geographic location. Further, since

       the Department did not make any promises that it would only enforce

       misconduct on the premises of the county, Orange County did not break any

       such promises by terminating Harris for his conduct involving his truck. In

       addition, Harris’s termination was not evidence that the Department had failed

       to consistently enforce the Handbook.


[34]   Finally, Harris argues that we should find an exception to the employment-at-

       will doctrine based on public policy. He notes that Judge Robb of this Court

       has written separate opinions in two cases arguing that provisions of employer

       handbooks, as well as employers’ promises “should mean something.”

       (Harris’s Br. 15) (citing Wynkoop, 970 N.E.2d at 238 (Robb., J., concurring

       opinion)). He argues that the Handbook’s promises will only “mean

       something” if we interpret it as a valid contract. In support of this argument, he

       also contends that “[w]hen employees are satisfied and secure in their

       employment, the employer is more assured that the employee will be

       productive. Employees cannot be secure in their employment knowing that

       employee policies regarding discipline may not be followed.” (Harris’s Br. 15).


[35]   We decline to address this argument because it does not fall within one of the

       exceptions that Indiana courts have recognized for the employment-at-will

       doctrine, and we do not wish to create a new exception here. Indiana appellate

       court have “consistently refused to create a public policy exception to the

       employment[-]at[-]will doctrine in the absence of a statute defining public

       policy.” Hamblin v. Danners, Inc., 478 N.E.2d 926, 929 (Ind. Ct. App. 1985); see

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 22 of 26
       also Meyers v. Meyers, 861 N.E.2d 704, 707 (Ind. 2007) (“In Morgan Drive Away,

       we emphasize that the ‘employment at will doctrine has steadfastly been

       recognized and enforced as the public policy of this state’ and that ‘[r]evision or

       rejection of the doctrine is better left to the legislature.’”) (quoting Morgan Drive

       Away, Inc. v. Brant, 489 N.E.2d 933, 934 (Ind. 1986)). Moreover, as we have

       already concluded, the Handbook did not contain any clear promises of

       employment. Therefore, there are not any promises for us to enforce under the

       guise of public policy.


       2. Defamation

[36]   Finally, Harris argues that the trial court erred when it granted Orange

       County’s motion for summary judgment on his defamation claim. A

       defamatory communication is “one that tends to harm a person’s reputation by

       lowering the person in the community’s estimation or deterring third persons

       from dealing or associating with the person.” Baker v. Tremco, Inc., 917 N.E.2d

       650, 657 (Ind. 2009). To establish defamation, a plaintiff must prove the

       following elements: (1) a communication with defamatory imputation; (2)

       malice; (3) publication; and (4) damages. Shine v. Loomis, 836 N.E.2d 952, 956

       (Ind. Ct. App. 2005), reh’g denied, trans. denied. A defendant in a defamation

       case is entitled to summary judgment if he demonstrates that the undisputed

       material facts negate at least one element of the plaintiff’s claim, id., or if he

       demonstrates that he has a defense to defamation. See, e.g., Northern Ind. Pub.

       Serv. Co. v. Dabagia, 721 N.E.2d 294, 301 (Ind. Ct. App. 1999) (noting that truth

       is an affirmative defense to defamation), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 23 of 26
[37]   Here, Orange County argued on summary judgment that the undisputed facts

       demonstrated that it did not have any malice. In addition, it asserted that it had

       two defenses to Harris’s defamation claim—(1) that its allegations in Harris’s

       termination letter regarding Harris’s drinking were true; and (2) that it had a

       qualified privilege to deliver the termination letter. The trial court entered a

       general grant of summary judgment, so the record is unclear as to which basis it

       granted summary judgment. However, we are not limited to reviewing the trial

       court’s reasons for granting or denying summary judgment and may affirm

       upon any theory supported by the designated materials. Old Romney

       Development Co. v. Tippecanoe Cnty., 817 N.E.2d 1282, 1285 (Ind. Ct. App.

       2004).


[38]   Qualified privilege exists as a defense to defamation in order to accommodate

       the important role of free and open intracompany communications and

       legitimate human resource management needs. Bals v. Verduzco, 600 N.E.2d

       1353, 1356 (Ind. 1992). This defense applies to communications “made in

       good faith on any subject matter in which the party making the communication

       has an interest or in reference to which he has a duty, either public or private,

       either legal, moral, or social, if made to a person having a corresponding

       interest or duty.” Id. Absent a factual dispute, whether a statement is protected

       by a qualified privilege is a question of law. Id. Intracompany communications

       regarding the fitness of an employee are protected by the qualified privilege. Id.


[39]   Because Orange County’s statements in Harris’s termination letter were

       intracompany communications that concerned his fitness to work, we conclude

       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 24 of 26
       that Orange County’s deliverance of the letter was protected by a qualified

       privilege. See id. Nevertheless, a statement otherwise protected by the doctrine

       of qualified privilege may lose its privileged character upon a showing of abuse

       wherein: (1) the communicator was primarily motivated by ill-will in making

       the statement; (2) there was excessive publication of the defamatory statements;

       or (3) the statement was made without belief or grounds for belief in its truth.

       Id. Once the statement is established as qualifiedly privileged, the plaintiff then

       has the burden of overcoming that privilege by showing that it has been abused.

       Id.


[40]   Here, Harris did not meet his burden of showing that Orange County had

       abused its qualified privilege. He did not designate any evidence that the letter

       was motivated by ill-will, that it was published excessively, or that Orange

       County did not believe in the truth of its allegations. Instead, the letter was

       delivered solely to Harris. He asserts that his designated evidence that his co-

       workers told him that they had heard he had “gotten the short end of the stick”

       was evidence that the allegations against him were widely published. (App.

       47). However, we find that, even if we consider his co-worker’s statements,

       they merely proved that his co-workers knew his employment had been

       terminated, not that the reason for his termination was published to them.

       Accordingly, since Orange County had a qualified privilege to deliver Harris’s

       termination letter, and there was no evidence that it abused that privilege, we




       Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015   Page 25 of 26
           conclude that the trial court did not err in granting summary judgment in favor

           of Orange County on Harris’s defamation claim.2


[41]       Affirmed.


           Crone, J., and Brown, J., concur.




       2
[1]      In its cross-appeal, Orange County argues that the trial court erred when it denied Orange County’s motion to
       strike the portions of Harris’s affidavit where he discussed the statements of his co-workers and when it denied
       Orange County’s motion to strike Harris’s designated political endorsement. Because we have found that the
       evidence Orange County challenges is not dispositive, and because we may find in favor of Orange County
       without considering its cross-appeal, we will not address the issues it raises in its cross-appeal any further.

           Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015                       Page 26 of 26
