      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                   FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                           Nov 30 2018, 9:02 am

      court except for the purpose of establishing                             CLERK
                                                                           Indiana Supreme Court
      the defense of res judicata, collateral                                 Court of Appeals
                                                                                and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
      Joseph C. Chapelle                                      Lisa L. Wojihoski
      Jackie S. Gessner                                       Indianapolis, Indiana
      Barnes & Thornburg, LLP
      Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      City of Lawrence,                                       November 30, 2018
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              18A-PL-824
              v.                                              Appeal from the Marion Superior
                                                              Court
      Jeff Dullaghan,                                         The Honorable James B. Osborn,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              49D14-1611-PL-39334



      Mathias, Judge.


[1]   The City of Lawrence (“the City”) appeals the Marion Superior Court’s

      interlocutory order denying the City’s motion to dismiss or, in the alternative,

      for summary judgment in a petition for judicial review filed by Jeff Dullaghan

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018             Page 1 of 13
      (“Dullaghan”), a firefighter employed by the City. On appeal, the City presents

      one issue for our review, which we restate as whether the trial court lacked

      subject matter jurisdiction to consider Dullaghan’s petition for judicial review.


[2]   We reverse and remand.


                                 Facts and Procedural History

[3]   Dullaghan is a firefighter employed by the City, specifically the Lawrence Fire

      Department (“the Department”), since 2002. The exact date on which his

      employment began is at issue in this case.

[4]   Dullaghan, along with several other recruits, passed the preliminary testing to

      become a firefighter. Accordingly, on June 4, 2002, the then-Chief of the

      Department sent a letter to the City’s Board of Public Works and Safety (“the

      Board”) that provides in relevant part:


              Dear Board Members,

              I would like to request the following individuals be approved for
              employment with the City of Lawrence Fire Department. These
              individuals have successfully completed all testing required by
              State law as well as local ordinances. The Fire Merit
              Commission has also approved these individuals for hire. I am
              requesting that their hire date be effective June 16, 2002.

      Appellant’s App. Vol. 3, p. 28 (emphasis added). Dullaghan’s name appeared in

      the list of recruits the Chief requested to be approved for employment.


[5]   The Department assigned most members of Dullaghan’s recruit class a hire date

      of June 16, 2002, consistent with the above-quoted letter. Dullaghan, however,
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 2 of 13
      failed the vision portion of the medical examination required by the Indiana

      Public Employees Retirement Fund (“PERF”). For PERF to approve

      Dullaghan, the Department had to certify to PERF that it would provide a

      reasonable accommodation for Dullaghan’s vision condition, i.e., an updated

      eyeglasses prescription. The Department did so and informed PERF that it had

      made such accommodations. Because of the delay in obtaining Dullaghan’s

      approval for PERF membership, the Department did not receive Dullaghan’s

      PERF approval until after those of his fellow recruiting class. Therefore, the

      Department assigned Dullaghan a hire date of June 18, 2002, the date on which

      the Department’s then-Chief received a telephone call from PERF informing

      him that PERF had approved Dullaghan for membership. The City claims, and

      Dullaghan contests, that Dullaghan could not be hired on the same date as the

      remaining recruits because PERF had not approved him at the same time as the

      other recruits.


[6]   The Department called Dullaghan on Friday, June 14, 2002, and told him to

      report on Monday, June 17, 2002, when the recruits were given uniforms.

      Dullaghan showed up as requested on June 17, but for some reason was unable

      to obtain his uniform at the time. He was told to show up the following day to

      begin training. Dullaghan did so and began classes with the rest of the recruits

      on June 18, 2002. Dullaghan successfully completed the firefighting training.

      Dullaghan began as a probationary firefighter. He later achieved the rank of




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 3 of 13
      second-class firefighter, and currently holds the rank of private first-class

      firefighter.1

[7]   Seniority in the Department is generally determined by the hiring date.

      Seniority among members of the same recruit class who were hired on the same

      date is determined by the recruit’s performance in the fire technology portion of

      the recruit training. Dullaghan received the highest score in the fire technology

      portion of the training. Thus, he would normally have seniority among

      members of his fellow recruiting class. But because the Department assigned

      Dullaghan a hire date two days after the rest of his class, he instead has the

      lowest seniority among his recruit class.

[8]   Dullaghan’s lower seniority negatively impacts Dullaghan’s priority status

      when selecting vacation days and scheduled days off and when bidding on shift

      assignments. The Department also considers seniority among several factors

      when determining promotions. Seniority does not otherwise impact a member’s

      rate of pay, benefits, or pay raises.

[9]   Dullaghan first attempted to address the issue of his hire date on January 14,

      2004, when he wrote a letter to the then-Chief of the Department to review his

      hiring date. On January 29, 2004, the Chief responded to Dullaghan’s letter,

      writing:




      1
        The ranks in the Department, from lowest to highest, include: probationary firefighter, second-class
      firefighter, private first-class firefighter, captain, deputy chief, and chief.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018                  Page 4 of 13
        After receiving your letter and conducting a meeting with you in
        regards to your seniority with the City of Lawrence Fire
        Department, I would like to report my decision as discussed with
        you on January 21, 2004.

        You had requested in writing that I review your seniority ranking
        on the department. Your current ranking is 65 out of 69
        firefighters. After reviewing the documentation, I must report
        your seniority will remain at its current level.

        My findings are that your actual hire date with the City of Lawrence Fire
        Department was June 18, 2002. That was the date the State PERF
        Board approved your Firefighter Pension Application. As you
        are aware, the PERF Board originally denied your application.
        The City of Lawrence Fire Department agreed to provide
        reasonable accommodations for you in order for you to be
        accepted by the PERF Board and be hired.

        The department bas[es] it’s [sic] seniority on two things[.] [O]ne
        is the original date of hire[,] and two is if more than one
        firefighter is hired on the same date, the seniority is then
        determined by their ranking in the Fire Technology portion of the
        recruit class. This has been the practice of the department for at
        least the past eight years.

        The situation that you are in is very unique. First of all you
        started employment two days later than the other firefighters in
        your recruit class except for [another firefighter] who started
        several weeks later. The other unique situation is that you did
        receive the highest score in the Fire Technology portion of the
        class. Seniority is based on hire date.

        If you disagree with this decision, you have the right to appeal to
        the Fire Merit Commission per our General Orders.


Appellant’s App. Vol. 2, p. 149 (emphasis added).



Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 5 of 13
[10]   Dullaghan appealed the Chief’s determination to the Fire Merit Commission

       (“the Commission”), which held a hearing on the matter and affirmed the

       Chief’s decision. Dullaghan did not further appeal the Commission’s

       determination at that time. During these proceedings, Dullaghan was unaware

       of the Chief’s June 4, 2002 letter to the Board, which lists him among the

       firefighters to be hired effective June 16, 2002.

[11]   Dullaghan continued to question his hire date, and he requested to see his

       personnel file on several occasions. The June 4, 2002 letter was not contained in

       his Department personnel file on those occasions. But when Dullaghan asked to

       see his personnel file on April 14, 2016, he discovered for the first time that the

       City kept a separate personnel file in addition to the one kept by the

       Department. In the City personnel file, Dullaghan found the June 4, 2002 letter

       that appears to support his belief that his hire date should be June 16, 2002.

[12]   Thereafter, Dullaghan sought to revisit the issue of his hire date with the current

       Chief of the Department. The Chief met with Dullaghan and informed him that

       he could not alter the Commission’s earlier 2004 decision. Dullaghan therefore

       filed a petition with the Commission on August 8, 2016, asking the

       Commission to change his hire date to June 16, 2002. The Commission held a

       hearing on the petition on October 6, 2016, and denied Dullaghan’s request to

       change his hire date.


[13]   Dullaghan sought judicial review of the Commission’s 2016 decision and filed a

       complaint for judicial review in Marion Superior Court on November 3, 2016.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 6 of 13
       On January 10, 2017, the City filed a motion to dismiss or, in the alternative,

       for summary judgment, claiming that the trial court lacked jurisdiction to

       consider Dullaghan’s request under the controlling statute. Specifically, the City

       cited Indiana Code section 36-8-3.5-18, which permits judicial review of a merit

       commission’s decision only when the decision involves: (1) a suspension of

       more than ten days, (2) a demotion, or (3) a dismissal. The City argued that the

       Commission’s denial of Dullaghan’s petition to change his hire date did not fall

       within any of these specified categories and that the trial court was therefore

       without jurisdiction to review the Commission’s decision. Dullaghan countered

       that the denial of his request to change his hiring date was tantamount to a

       demotion and that the trial court therefore did have jurisdiction to review the

       Commission’s decision.


[14]   The trial court held a hearing on the City’s motion on February 15, 2018, and

       issued an order denying the motion on February 23, 2018. On March 22, 2018,

       the City filed a request with the trial court to certify its order for interlocutory

       appeal, which the trial court granted on March 27, 2018. The City then filed a

       motion with this court asking that we accept interlocutory jurisdiction. On May

       4, 2018, the motions panel of this court granted the City’s motion, and this

       appeal ensued.


                                          Standard of Review
[15]   The City appeals from the trial court’s denial of its motion to dismiss or, in the

       alternative, for summary judgment. In its motion, the City argued, as it does on

       appeal, that the trial court lacked subject matter jurisdiction.
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 7 of 13
[16]   The lack of subject matter jurisdiction may be raised as an affirmative defense

       either in an answer to the complaint or in a motion to dismiss. GKN Co. v.

       Magness, 744 N.E.2d 397, 403–04 (Ind. 2001). Generally, the party challenging

       the trial court’s subject matter jurisdiction bears the burden of establishing that

       jurisdiction does not exist. Id. at 404. In ruling upon a motion to dismiss for

       lack of subject matter jurisdiction, the trial court may consider not only the

       complaint and motion, but may also consider affidavits or supporting evidence.

       Id. at 400. Additionally, the trial court may weigh the evidence to determine the

       existence of the requisite jurisdictional facts. Id.


[17]   The standard of review we apply on appeal depends upon what happened in the

       trial court. Id. at 401. If the facts before the trial court are undisputed, the

       question of subject matter jurisdiction is purely one of law, and we accordingly

       review the trial court’s ruling de novo. Id. If the facts are in dispute, our standard

       of review depends upon whether the trial court conducted an evidentiary

       hearing. Id. If the trial court conducted an evidentiary hearing where it engaged

       in the classic fact-finding functions of evaluating the character and credibility of

       witnesses, then we give the trial court’s factual findings and judgment deference

       and will only reverse for clear error. Id. If, however, the facts are disputed, but

       the trial court rules on a paper record without conducting an evidentiary

       hearing, then we afford no deference to the trial court’s factual findings or

       judgment because, under such circumstances, we are in as good a position as

       the trial court to determine whether there is subject matter jurisdiction. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 8 of 13
       Thus, our review is also de novo if the facts are disputed and the trial court has

       ruled upon a paper record. Id.


[18]   Here, the trial court held a hearing at which it heard arguments from both

       parties, but no witnesses were sworn and no evidence was presented. Thus, the

       trial court did not hold an evidentiary hearing, at which it exercised its role as a

       finder of fact. Instead, the trial court ruled on a paper record based on the

       arguments of counsel. We therefore review the trial court’s decision de novo. See

       id.


                                      Discussion and Decision
[19]   The City contends that the trial court was without jurisdiction to hear

       Dullaghan’s claims regarding his hire date and that the court should therefore

       have granted its motion to dismiss. Dullaghan counters that the trial court

       properly denied the City’s motion to dismiss because the court did have

       jurisdiction to consider his claim.

[20]   Both parties agree that the power of a trial court to consider the decision of a

       Fire Merit Commission is governed by Indiana Code section 36-8-3.5-18(a),

       which provides that “[a] member who is aggrieved by a decision of the

       commission to suspend the member for a period greater than ten (10) calendar

       days, demote the member, or dismiss the member may appeal to the circuit or

       superior court of the county in which the unit is located.” Here, it is undisputed

       that Dullaghan was not dismissed, nor was he suspended for any period.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 9 of 13
       Therefore, the ability of the trial court to consider his claims depends upon

       whether he was demoted.

[21]   The City argues that, even considering the evidence in the light most favorable

       to Dullaghan, the evidence shows that he was not demoted. Dullaghan counters

       that, by rejecting his claim regarding his hire date, the Commission effectively

       demoted him. Accordingly, the resolution of this case depends upon whether

       the Commission’s decision not to alter (according to the City) or correct

       (according to Dullaghan) the date on which Dullaghan was hired amounts to a

       “demotion” that would permit the trial court to review the Commission’s

       decision.2

[22]   When interpreting a statute, our primary goal is to ascertain and give effect to

       the intent of the legislature. Gray v. D & G, Inc., 938 N.E.2d 256, 259 (Ind. Ct.

       App. 2010). The best evidence of legislative intent is the language of the statute

       itself. Id. Therefore, we must give all words their plain and ordinary meaning

       unless otherwise indicated by statute. Id.


[23]   Indiana Code section 36-8-3.5-18 does not contain a definition of the word

       “demote.” In fact, our search of the Indiana Code reveals only one definition of

       the related word “demotion,” under the statues governing the State Civil

       Service System. See Ind. Code § 4-15-2.2-35(d) (“The reassignment of a




       2
         We agree with Dullaghan that the trial court had authority to consider the jurisdictional question of
       whether Dullaghan was, or was not, demoted. We conclude, however, that even considering the facts in the
       light most favorable to Dullaghan, he was not, as a matter of law, demoted.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018            Page 10 of 13
       classified employee to a position in a class of a lower rank is a demotion.”). We

       therefore turn to dictionaries to assist us in determining the plain and ordinary

       meaning of the word “demote.” See Montalvo v. State ex rel. Zoeller, 27 N.E.3d

       795, 799 (Ind. Ct. App. 2015) (noting that if the legislature has not defined a

       word in a statute, we may properly consult English language dictionaries to

       determine the plain and ordinary meaning of a word) (citing Naugle v. Beech

       Grove City Schs., 864 N.E.2d 1058, 1068 (Ind. 2007)), trans. denied.


[24]   The verb “demote” has been defined by various English language dictionaries

       as “to reduce to a lower grade or rank,”3 “to reduce to a lower grade, rank,

       class, or position,”4 “[t]o reduce in grade, rank, or status,”5 “[r]educe to a lower

       rank or class.”6 See also Demote, Black’s Law Dictionary (10th ed. 2014)

       (defining “demote” as “[t]o lower (usu. a person) in rank, position, pay, or

       other status.”). See also Heyne v. Mabrey, 178 Ind. App. 610, 613, 383 N.E.2d

       464, 467 (1978) (holding that plaintiffs, who were state employees whose

       positions were reclassified and reduced in job designation, but who did not

       suffer any reduction in pay or have their duties reduced, were not “demoted”




       3
           Webster’s Third New International Dictionary 601 (2002).
       4
           Random House Dictionary Unabridged 531 (2d. ed. 1987).
       5
           American Heritage Dictionary 484 (4th ed. 2000).
       6
           New Shorter Oxford English Dictionary 631 (4th ed. 1993).

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 11 of 13
       where their only possible injury was the change in job titles and the loss of

       potential merit or step increases in pay).7

[25]   Here, even viewing all the evidence in the light most favorable to Dullaghan,

       the injury he claims he has suffered as a result of the Commission’s decision is

       priority when choosing days off and bidding for shift assignment. Seniority is

       also considered as a part of the promotion process. But the Commission’s

       decision to deny Dullaghan’s request to alter his hire date did not reduce

       Dullaghan in rank or position. Dullaghan is and remains a private first-class

       firefighter. Dullaghan’s lower seniority does not affect his pay or benefits, and it

       is only one of many factors when it comes to determining promotions. For this

       reason, the Commission’s decision did not “demote” Dullaghan.8

[26]   Furthermore, the Commission’s decision did not reduce Dullaghan to a less

       senior position. It merely chose not to alter his current seniority, and Dullaghan

       has always had less seniority than the other members of his fellow recruiting

       class.




       7
         Dullaghan argues that Heyne is distinguishable because the court also held that “[i]f the reduction in grade
       had been accomplished by the appointing authority, it could be said to be a demotion within the meaning of
       [the controlling statute].” Id. at 613, 383 N.E.2d at 466–67. The court then went on, however, to note that the
       change in classification was not a demotion because the plaintiffs had not suffered a loss of salary or
       reduction in duties. Id., 383 N.E.2d at 467. Here, even though the City is the appointing authority, Dullaghan
       has still suffered no reduction in salary or duties, and he has therefore not been demoted.
       8
        Dullaghan’s citation to Indiana Department of Environmental Management. v. West, 838 N.E.2d 408 (Ind.
       2005), for the proposition that “[a] demotion is an adverse employment action . . .” is unavailing. This
       quotation, as Dullaghan acknowledges, came from the separate opinion of Justice Boehm, joined by Justice
       Rucker, concurring and dissenting in part, and therefore does not represent the opinion of our supreme court.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018                 Page 12 of 13
                                                 Conclusion

[27]   For all of these reasons, we conclude that the Commission’s rejection of

       Dullaghan’s request to alter his hire date did not constitute a demotion. Because

       the Commission’s decision did not constitute a demotion, the trial court did not

       have jurisdiction to review the Commission’s decision under the statute

       granting the trial court authority to review decisions of the Commission.

       Therefore, the trial court should have granted the City’s motion to dismiss. We

       reverse the trial court’s order and remand with instructions that the trial court

       grant the City’s motion to dismiss.


[28]   Reversed and remanded.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-824 | November 30, 2018   Page 13 of 13
