                                                                                                FILED
                                                                                           Apr 11 2019, 10:06 am

                                                                                                CLERK
                                                                                            Indiana Supreme Court
                                                                                               Court of Appeals
                                                                                                 and Tax Court




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


                                             IN THE
    COURT OF APPEALS OF INDIANA

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



Altice , Judge.


                                           Case Summary1




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

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

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

      complaint for wrongful termination. Although the Hospital identified the

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

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

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

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

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

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

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

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

      improperly granted.


[2]   We affirm.


                                         Facts & Procedural History


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

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

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

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

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

      promised continued employment through any specific date.


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

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

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

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

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

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

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

      department, drove to the unemployment hearing and confirmed that Perkins

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


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

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

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

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

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

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

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

      recording of what transpired at the unemployment benefits appeal hearing to

      find out the substance of Perkins’s testimony.


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

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

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

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



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

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

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

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

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

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

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

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

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


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

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

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

      received any disciplinary complaints and had never been written up for

      violations of the employee handbook.


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

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

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

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

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

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

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

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

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

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

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

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

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


                                             Discussion & Decision


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

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

       summary judgment is appropriate ‘if the designated evidentiary matter shows

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

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

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

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

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

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

       (internal citations omitted).


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

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

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

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

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

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

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




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

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


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

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

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

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

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

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

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

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

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

       citation omitted).


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

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

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

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

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

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

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

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

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

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



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

       rise to an action in tort. Id.


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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

       Id. at 428.


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

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

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

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

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

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

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

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

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


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

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

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

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

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




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

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

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

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

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

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

       of this case. 5


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

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

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

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

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

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

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

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

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



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

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

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


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

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

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

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

       compelling reason to warrant judicial expansion of the public policy exception

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

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

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

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

       summary judgment in favor of the Hospital.


[19]   Judgment affirmed.


       Tavitas, J., concurs.


       Kirsch, J., dissents with opinion.




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




                                                   IN THE
           COURT OF APPEALS OF INDIANA

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



      Kirsch, Judge. dissenting.


[1]   I respectfully dissent.


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

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

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

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

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

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

      attendance.


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

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

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

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

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

      Compensation Hearing.


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

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

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

      the subpoena. Memorial Hospital of South Bend then discharged Officer

      Perkins.


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

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

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

      suffered a very significant consequence: he was terminated from his

      employment.


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




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