                                                                     Mar 03 2016, 8:24 am




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Christopher J. DeGroff                                    Jason R. Ramsland
Joseph S. Turner                                          Ball Eggleston PC
Seyfarth Shaw LLP                                         Lafayette, Indiana
Chicago, Illinois
                                                          ATTORNEYS FOR AMICUS
                                                          NATIONAL RIFLE ASSOCIATION OF
                                                          AMERICA, INC.
                                                          David H. Thompson
                                                          Cooper & Kirk, PLLC
                                                          Washington, D.C.
                                                          Thomas Todd Reynolds
                                                          Carmel, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Caterpillar Inc.,                                         March 3, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A02-1507-CT-801
        v.                                                Appeal from the Tippecanoe
                                                          Circuit Court
William Sudlow,                                           The Honorable Donald L. Daniel,
Appellee-Plaintiff                                        Judge
                                                          The Honorable Thomas H. Busch,
                                                          Judge
                                                          Trial Court Cause No.
                                                          79C01-1107-CT-29



Baker, Judge.


Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016                     Page 1 of 9
[1]   Caterpillar, Inc., appeals the trial court’s order granting summary judgment in

      favor of William Sudlow. Sudlow was a Caterpillar employee who was fired

      after another employee observed a partially visible gun in Sudlow’s vehicle in

      the Caterpillar parking lot. The trial court entered summary judgment in

      Sudlow’s favor because it found that Caterpillar’s policy did not prohibit the

      conduct for which Sudlow was fired. Finding that Sudlow is not entitled to

      relief under statute or common law, we reverse the summary judgment order

      and the damages award and remand with instructions to enter summary

      judgment in favor of Caterpillar.


                                                      Facts    1




[2]   During the relevant period of time, Caterpillar had a Facility Firearms policy

      (the Firearms Policy) that read as follows:


              In accordance with Indiana State Statute 34-28-7-2, employees or
              suppliers legally permitted to possess and transport a firearm are
              authorized to store the firearm in the licensee’s private means of
              transportation in line with state law. Any person who chooses to
              transport his or her firearm under this law must abide by the
              regulations within the law while on Caterpillar property.


                                                        ***




      1
       We held oral argument in Indianapolis on February 22, 2016. We thank counsel for both parties for their
      able written and oral presentations.

      Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016                        Page 2 of 9
              Any person found to be in violation of this policy, may be subject
              to disciplinary action up to and including termination and/or
              criminal prosecution.


      Appellant’s App. p. 72, 98. Indiana Code section 34-28-7-2(a) (“the Firearms

      Statute”) reads as follows:

              Notwithstanding any other law and except as provided in
              subsection (b), a person may not adopt or enforce an ordinance, a
              resolution, a policy, or a rule that:

                       (1)      prohibits; or

                       (2)      has the effect of prohibiting;

              an employee of the person, including a contract employee, from
              possessing a firearm or ammunition that is locked in the trunk of
              the employee’s vehicle, kept in the glove compartment of the
              employee’s locked vehicle, or stored out of plain sight in the
              employee’s locked vehicle.


[3]   On March 28, 2011, Sudlow drove to work. That day, he had a loaded Ruger

      .357 Magnum handgun—for which he had a permit—“stuffed down between

      the [center] console and the driver’s seat.” Appellant’s App. p. 60-61. Sudlow

      left the gun there when he parked and exited his vehicle and entered the

      building to begin his work day. Another Caterpillar employee was walking

      through the parking lot and walked past Sudlow’s vehicle. The employee

      noticed what appeared to be a handgun inside the vehicle. He could see the

      weapon’s handle, the guard over the trigger, and the holster. He then reported

      the issue to Caterpillar’s head of security. Eventually, the head of security



      Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016      Page 3 of 9
      confirmed the presence of the weapon in the vehicle and told Sudlow that he

      was suspended indefinitely.


[4]   On March 30, 2011, Sudlow was fired for violating the Firearms Policy. The

      same day, Caterpillar posted a new firearms policy throughout the building; the

      new policy explicitly states that firearms in employees’ vehicles must be kept

      “secured and out of sight[.]” Id. at 98.


[5]   On July 19, 2011, Sudlow filed a complaint against Caterpillar, alleging that

      Caterpillar had violated the Firearms Statute when it terminated his

      employment for violating the Firearms Policy. On May 15, 2014, Caterpillar

      moved for summary judgment; on June 16, 2014, Sudlow filed a cross-motion

      for summary judgment. Following briefing and a hearing, the trial court

      entered an interlocutory order granting summary judgment in Sudlow’s favor

      on September 24, 2014. In pertinent part, the trial court found as follows:


              1.       The Plaintiff stored a firearm in his vehicle while in the
                       employee parking lot and said firearm was in plain sight.


              2.       The Defendant’s posted policy, in effect at the time of said
                       incident, allowed employees to store a weapon in his or
                       her vehicle, and did not require that said firearm be kept
                       out of sight.


              3.       The Plaintiff’s actions complied with the Defendant’s
                       policy.


                                                        ***


      Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016         Page 4 of 9
              5.       [The Firearms Statute] allows an employer to be more
                       restrictive in its firearms policy, but the Defendant did not
                       make [its] policy so restrictive as to prevent the Plaintiff’s
                       action in this case.


      Id. at 6. The trial court denied Caterpillar’s motion to certify the order for an

      interlocutory appeal. A jury trial regarding damages was held on June 9, 2015,

      and the jury awarded damages to Sudlow in the amount of $85,000. Caterpillar

      now appeals.


                                    Discussion and Decision
[6]   Our standard of review on summary judgment is well established:

              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 T.R. 56(C)). . . .


              . . . And “[a]lthough the non-moving party has the burden on
              appeal of persuading us that the grant of summary judgment was
              erroneous, we carefully assess the trial court’s decision to ensure
              that he was not improperly denied his day in court.” McSwane v.
              Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909–10 (Ind.
              2009) (internal quotation marks omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). This appeal also calls for us

      to interpret statutory language, which is a pure question of law to which we



      Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016           Page 5 of 9
      apply a de novo standard of review. E.g., Meyer v. Beta Tau House Corp., 31

      N.E.3d 501, 513 (Ind. Ct. App. 2015).


                                     I. The Firearms Statute
[7]   As noted above, the Firearms Statute reads as follows:

              Notwithstanding any other law and except as provided in
              subsection (b), a person may not adopt or enforce an ordinance, a
              resolution, a policy, or a rule that:

                       (1)      prohibits; or

                       (2)      has the effect of prohibiting;

              an employee of the person, including a contract employee, from
              possessing a firearm or ammunition that is locked in the trunk of
              the employee’s vehicle, kept in the glove compartment of the
              employee’s locked vehicle, or stored out of plain sight in the
              employee’s locked vehicle.


      The plain and unambiguous language of this statute prohibits employers from

      enacting policies that prevent their employees from having a firearm that is

      locked in the trunk, kept in the glove box in a locked vehicle, or stored out of

      sight in the employee’s locked vehicle.


[8]   Here, Caterpillar’s Firearms Policy did not prohibit conduct that is protected by

      the Firearms Statute. Sudlow’s attorney conceded as much at oral argument.

      Indeed, as noted by the trial court, per the Firearms Statute, Caterpillar could

      have enacted a more restrictive policy (and did so the day Sudlow was fired) but




      Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016     Page 6 of 9
      it chose not to do so.2 It is readily apparent that neither the Firearms Policy nor

      Caterpillar’s interpretation thereof violated the Firearms Statute. As a cause of

      action under the Firearms Statute is authorized only when an employer violates

      the statute, see I.C. § 34-28-7-3, Sudlow has no right to recover on this basis.


[9]   Sudlow argues that the Firearms Statute “protects a lawful possessor of firearms

      from adverse employment action for reasonable and responsible possession of

      firearms, and Caterpillar’s actions had the effect of prohibiting Sudlow from

      lawfully keeping his firearm in his car.” Appellee’s Br. p. 5. He similarly

      contends that the intent of the statute “is to protect the rights of lawful firearm

      possession.” Id. at 7. Sudlow essentially argues that the Firearms Statute does

      the following: (1) sets a default position of permitting every gun owner to be

      allowed to take any gun into any workplace; and (2) if the employer wants to

      curtail that conduct, the statute would require employers to enact a firearms

      policy to do so. In other words, Sudlow believes that if an employer does not

      have a firearms policy in place, an employee could walk into the workplace

      with a loaded assault rifle and face no employment consequences as a result.




      2
       There is some discussion about whether the language of the Firearms Policy was ambiguous—whether it
      actually prohibited the conduct for which Sudlow was fired. But to the extent that Caterpillar’s interpretation
      of the policy was more restrictive than the policy language contemplated, even the interpretation and
      enforcement of the policy—requiring that firearms be kept out of sight in employees’ vehicles—does not
      violate the Firearms Statute.

      Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016                            Page 7 of 9
[10]   It is clear that the Firearms Statute is not nearly so broad—in fact, it is written

       quite narrowly and specifically.3 According to the plain and unambiguous

       language of the statute, the reasonable and responsible possession of firearms—

       the protected activity—is defined as a firearm that is locked in the trunk, kept in

       the glove compartment, or stored out of plain sight in the employee’s locked

       vehicle. Here, Sudlow’s conduct did not fall into that category; 4 as a result, it

       was not protected by the Firearms Statute.5


[11]   Caterpillar’s Firearms Policy did not prohibit statutorily protected conduct.

       Furthermore, its interpretation of its Firearms Policy also did not prohibit

       protected conduct. Consequently, Sudlow is not entitled to relief under the

       Firearms Statute.


                                              II. Common Law
[12]   If Sudlow does not have a cause of action under the Firearms Statute, his only

       recourse would be something akin to a wrongful termination claim. It is

       undisputed that he was an at-will employee, meaning that his employment



       3
        The statute certainly does not require every employer to enact a firearms policy, as Sudlow’s attorney
       conceded at oral argument.
       4
        The parties dispute the extent to which Sudlow’s weapon was in plain sight. But it is undisputed that there
       was enough of the gun visible that an employee was able to see and identify it when casually walking by the
       vehicle. As a matter of law, this suffices to constitute storage in plain sight.
       5
        While Sudlow and his amicus make much of the right to bears arms as provided for by our state and federal
       constitutions, Sudlow conceded at oral argument—as, indeed, he must—that constitutional rights are not
       implicated in this case. “The state and federal constitutional provisions do not apply to unauthorized acts of
       private citizens.” Hutchinson v. State, 477 N.E.2d 850, 853 (Ind. 1985). As Caterpillar is a private citizen, it is
       impossible for its actions to violate either constitution. Thus, the only rights upon which Caterpillar possibly
       could have infringed are statutory or common law rights, not constitutional ones.

       Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016                                Page 8 of 9
       could have been terminated by either party at will, with or without a reason.

       E.g., Ogden v. Robertson, 962 N.E.2d 134, 145 (Ind. Ct. App. 2012). There are

       three exceptions to the employment-at-will doctrine, but the parties discuss only

       the public policy exception: “we have recognized a public policy exception to

       the employment-at-will doctrine if a clear statutory expression of a right or duty

       is contravened.” Orr v. Westminster Village N., Inc., 689 N.E.2d 712, 718 (Ind.

       1997).


[13]   The Firearms Statute is the best expression of Indiana’s public policy regarding

       the right to transport and store firearms at work. And while this statute does

       confer a right to store a weapon in a trunk, glove compartment, or out of sight

       in a locked vehicle, it simply does not confer a right to store a weapon in a

       vehicle in plain sight. It is apparent, therefore, that in this case, there was no

       contravention of a clear statutory expression of a right. As a result, the public

       policy exception to the employment-at-will doctrine does not apply, and

       Sudlow is not entitled to relief under the common law.


[14]   The judgment of the trial court is reversed and remanded with instructions to

       enter summary judgment in favor of Caterpillar.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1507-CT-801 | March 3, 2016     Page 9 of 9
