                                                                        FILED
                                                                   Nov 02 2016, 7:55 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ryan P. Sink                                              Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Aaron T. Craft
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Ron Shoemaker,                                            November 2, 2016
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                49A02-1604-PL-879
              v.                                                Appeal from the Marion Superior
                                                                Court
      Indiana State Police                                      The Honorable Gary L. Miller,
      Department,                                               Judge
      Appellee-Defendant.                                       Trial Court Cause No.
                                                                49D03-1408-PL-26357



      Altice, Judge.


                                                Case Summary


[1]   Ronald Shoemaker, a law enforcement officer with the Indiana State Police

      Department (ISP) for well over twenty years, was demoted in rank and pay in

      2013 shortly after a new Superintendent of ISP was appointed. Shoemaker

      believes that the demotion was the result of a whistleblower report he filed with
      Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016              Page 1 of 15
      his supervisor about four years earlier. Pursuant to Ind. Code § 4-15-10-4, the

      Whistleblower Law (the WBL), Shoemaker initiated an administrative appeal

      of his demotion. After his action was dismissed by the administrative law judge

      (the ALJ) for being untimely filed, Shoemaker did not pursue judicial review of

      the administrative decision. He filed the instant breach of contract action

      instead. ISP sought summary judgment on the ground that Shoemaker failed to

      exhaust his administrative remedies and could not bring an action for breach of

      contract under the WBL.1 The trial court granted ISP’s motion for summary

      judgment, and Shoemaker appeals.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Shoemaker began his employment with ISP in 1989 and steadily climbed the

      ranks from trooper, to senior trooper, to master trooper, to sergeant (his last

      merit rank), to spot captain, and to spot major over the entire Criminal

      Investigation Division (the CID).2 In 2008, when he was a sergeant in the Drug

      Enforcement Section of the CID, Shoemaker authored and submitted a written

      report to his direct supervisor concerning issues he had observed in the Drug

      Enforcement Section, including ghost employment, overtime, and possible



      1
       ISP also argued that it was entitled to summary judgment on the merits. We need not delve into the merits
      of the breach of contract claim because we find the procedural issues dispositive.
      2
       There are two types of rank within ISP. Merit rank is the last permanent rank that a person competitively
      applied for and achieved. An appointed rank, also known as spot rank, is captain or above and such ranks
      are appointed at the discretion of the ISP Superintendent.

      Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016                      Page 2 of 15
      misrepresentations by law enforcement officers to the court. The report was

      then provided to Superintendent Paul Whitesell.


[4]   As a result of the report, Superintendent Whitesell promoted Shoemaker to

      captain of the CID in 2009 (replacing Michael Snider) and then to major of the

      CID in 2012 (replacing Larry Turner). Superintendent Whitesell moved Snider,

      Turner, and Lori Petro out of the CID at different points after the report, which

      Turner referred to as Shoemaker’s manifesto.


[5]   In January 2013, Doug Carter was appointed by Governor Mike Pence to

      replace Whitesell as Superintendent of ISP. On April 15, 2013, Superintendent

      Carter demoted Shoemaker from major to his last permanent rank of sergeant

      and transferred him out of the CID. This change in rank reduced Shoemaker’s

      rate of pay. On that same day, in addition to other personnel changes,

      Superintendent Carter replaced Shoemaker with Snider as major of the CID,

      promoted Petro to captain of the CID, and brought Turner back to the CID as

      third in command.


[6]   On January 29, 2014, more than nine months after his demotion, Shoemaker

      initiated an appeal pursuant to the State Employee Appeals Commission

      (SEAC) procedure outlined in Ind. Code § 4-15-2.2-42. Shoemaker alleged that

      he was demoted in retaliation for engaging in protected activity under the

      WBL. Acknowledging the late filing, he argued that the SEAC’s thirty-day

      statute of limitations should be stayed based on equitable tolling and fraudulent

      concealment.


      Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016   Page 3 of 15
[7]   On July 15, 2014, the ALJ entered the SEAC’s final order dismissing the

      action. Specifically, the ALJ concluded that Shoemaker’s complaint was

      untimely filed and that equitable tolling based on a theory of fraudulent

      concealment was not applicable to save his action. The order advised

      Shoemaker that he could seek judicial review within thirty days.


[8]   Instead of exhausting the administrative appeals process by seeking judicial

      review of the SEAC’s final order, Shoemaker chose to file the instant breach of

      contract action on August 7, 2014. His claim was based on ISP’s alleged

      violation of the WBL. On January 22, 2016, ISP filed a motion for summary

      judgment, along with designated evidence and a memorandum in support.

      Following additional filings and a hearing on the motion, the trial court granted

      summary judgment in favor of ISP on April 8, 2016. Shoemaker now appeals.


                                           Discussion & Decision


[9]   When reviewing a summary judgment ruling, we apply the same standard as

      the trial court. David v. Kleckner, 9 N.E.3d 147, 149 (Ind. 2014). “Summary

      judgment may be granted, or affirmed on appeal, only ‘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 a judgment as a matter of law.’” Id.

      (quoting Ind. Trial Rule 56(C)). The facts and reasonable inferences established

      by the designated evidence are to be construed in favor of the non-moving

      party. Id.




      Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016   Page 4 of 15
[10]   The party appealing a grant of summary judgment has the burden of persuading

       this court that the ruling was erroneous. See Perkins v. Stesiak, 968 N.E.2d 319,

       321 (Ind. Ct. App. 2012), trans. denied. The appellant also bears the burden of

       presenting a complete record with respect to the issues raised on appeal. Finke

       v. N. Ind. Pub. Serv. Co., 862 N.E.2d 266, 272-73 (Ind. Ct. App. 2006) (“We

       cannot review a claim that a trial court erred in granting a motion for summary

       judgment when the appellant does not include in the record all the evidence

       designated to the trial court and before it when it made its decision.”), trans.

       denied; see also Lenhardt Tool & Die Co., Inc. v. Lumpe, 703 N.E.2d 1079, 1084

       (Ind. Ct. App. 1998), trans. denied.


[11]   Shoemaker wholly failed in his obligation to provide an adequate record on

       appeal. The appendix he filed includes only the CCS, the summary judgment

       order, and sixteen exhibits that we suppose, though we do not know for certain,

       constitute the evidence he designated below. Shoemaker does not include ISP’s

       motion for summary judgment, the memoranda filed in support of and in

       opposition to the motion, or ISP’s designated evidence. Thus, we would be

       well within our discretion to conclude that Shoemaker, as the appealing party,

       failed to present us with a record sufficient to conclude that the trial court erred

       in granting summary judgment to ISP. See Finke, 862 N.E.2d at 273. Still, we

       prefer to decide cases on their merits whenever possible. Omni Ins. Group v.

       Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012), trans. denied. Our review,

       though significantly hampered, is possible only because ISP filed the omitted

       portions of the record in its appendix.

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016   Page 5 of 15
[12]   We turn first to the provisions of the WBL:


               (a) Any employee may report in writing the existence of:

                        (1) a violation of a federal law or regulation;

                        (2) a violation of a state law or rule;

                        (3) a violation of an ordinance of a political subdivision (as
                        defined in IC 36-1-2-13); or

                        (4) the misuse of public resources;

               to a supervisor or to the inspector general.

               (b) For having made a report under subsection (a), the employee
               making the report may not:

                        (1) be dismissed from employment;

                        (2) have salary increases or employment related benefits
                        withheld;

                        (3) be transferred or reassigned;

                        (4) be denied a promotion the employee otherwise would
                        have received; or

                        (5) be demoted.

               (c) Notwithstanding subsections (a) and (b), an employee must
               make a reasonable attempt to ascertain the correctness of any
               information to be furnished and may be subject to disciplinary
               actions for knowingly furnishing false information, including
               suspension or dismissal, as determined by the employee’s
               appointing authority, the appointing authority’s designee, or the
               ethics commission. However, any state employee disciplined under this
               subsection is entitled to process an appeal of the disciplinary action under
               the procedure as set forth in IC 4-15-2.2-42.


       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016         Page 6 of 15
               (d) An employer who violates this section is subject to criminal
               prosecution under IC 35-44.2-1-1.

       Ind. Code § 4-15-10-4 (emphasis supplied).


[13]   In Ogden v. Robertson, 962 N.E.2d 134 (Ind. Ct. App. 2012), trans. denied, the

       appellant argued that although subsection (c) provides an administrative

       appeals process for violations of the WBL, use of that process was not a

       mandatory prerequisite to judicial review. Id. at 144. Our court disagreed and

       rejected the appellant’s attempt to raise a common law claim for wrongful

       discharge based on the WBL. The court reasoned as follows: “If we were to

       hold that a claimant could seek judicial review based on a right derived from

       the WBL through common law and, therefore, bypass the exhaustion of

       administrative remedies requirement of the WBL, it would make the

       exhaustion requirements of the WBL illusory.” Id. at 146. See also Coutee v.

       Lafayette Neighborhood Hous. Servs., Inc., 792 N.E.2d 907, 911-12 (Ind. Ct. App.

       2003 (observing that the General Assembly has legislated the protection for

       certain employees to be able to blow the whistle without retaliation and holding

       that the plaintiff’s cause of action, if any, is under the statute, not the common

       law), trans. denied.


[14]   In an attempt to avoid the exhaustion of remedies requirement, Shoemaker

       asserts two independent arguments. He claims that due to futility, inadequacy,

       and judicial estoppel, he should be excused from following the administrative

       procedure set out in I.C. § 4-15-10-4. Alternatively, citing Whinery v. Roberson,

       819 N.E.2d 465 (Ind. Ct. App. 2006), trans. dismissed, Shoemaker contends that

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016   Page 7 of 15
       the statute conferred a contractual right entitling him to bring a breach of

       contract action. We will address each argument in turn.


[15]   An individual may be exempted from the exhaustion requirement when the

       administrative process would be inadequate or futile. Ogden, 962 N.E.2d at

       144. To prevail on a claim of futility, “one must show that the administrative

       agency was powerless to effect a remedy or that it would have been impossible

       or fruitless and of no value under the circumstances.” Id. (quoting Smith v. State

       Lottery Comm’n of Ind., 701 N.E.2d 926, 931 (Ind. Ct. App. 1998), trans. denied).

       In other words, the exhaustion requirement will be relaxed when there is grave

       doubt as to the availability of the administrative remedy. Id. Our Supreme

       Court has cautioned that “the exhaustion requirement is much more than a

       procedural hoop and that it should not be dispensed with lightly on grounds of

       ‘futility.’” Town Council of New Harmony v. Parker, 726 N.E.2d 1217, 1224 (Ind.

       2000), amended in part on reh’g, 737 N.E.2d 719 (Ind. 2000).


[16]   Shoemaker’s futility argument is based on his claim that the administrative

       remedy set out in I.C. § 4-15-10-4(c) (an administrative appeal through the

       SEAC procedure outlined in I.C. § 4-15-2.2-42) was not available to him

       because he is an ISP employee. We observe that this position is directly

       contrary to the one he took before the SEAC in his administrative appeal. See,




       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016   Page 8 of 15
       e.g., Appellee’s Appendix at 82, 85. For the reasons set out below, we agree with

       his original stance regarding that applicability of the SEAC procedure.3


[17]   I.C. 4-15-2.2 is a lengthy chapter addressing the State Civil Service System.

       Within its fifty-three sections, the chapter deals with, among other things,

       hiring, dismissal, demotion, reassignment, and suspension of state employees,

       classification of positions based on the authority, duties, and responsibilities of

       each position, development of a pay plan, and establishment of performance

       standards. I.C. § 4-15-2.2-1 defines the general applicability of the chapter and

       expressly excludes ISP.4




       3
         Shoemaker argues that ISP should not be permitted to change its position on this issue, because it had
       previously argued that the SEAC was not the proper forum for Shoemaker’s whistleblower claim. ISP made
       alternative arguments to the SEAC: 1) the SEAC was not the proper forum and 2) regardless of the proper
       administrative forum, the complaint was untimely filed. The ALJ decided the case on the timeliness ground.
       In light of the fact that Shoemaker has the burden of establishing error on appeal and, in this regard, asserts a
       position different than he did during the SEAC process, we find his judicial estoppel argument disingenuous.
       4
           I.C. § 4-15-2.2-1 provides:

                (a) Except as provided in subsection (b), this chapter applies to employees of a governmental
                entity that exercises any of the executive powers of the state under the direction of the governor
                or lieutenant governor.
                (b) This chapter does not apply to the following:
                  (1) The legislative department of state government.
                  (2) The judicial department of state government.
                  (3) The following state elected officers and their personal staffs:
                       (A) The governor.
                       (B) The lieutenant governor.
                       (C) The secretary of state.
                       (D) The treasurer of state.
                       (E) The auditor of state.
                       (F) The superintendent of public instruction.
                       (G) The attorney general.

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016                            Page 9 of 15
[18]   Also within the chapter is I.C. § 4-15-2.2-42, which addresses the filing of a

       complaint by an employee in the state civil service system concerning the

       application of a law, rule, or policy to the complainant. Regarding the

       complainant’s administrative remedy, I.C. § 4-15-2.2-42 provides in part:


               (c) An employee who files a complaint under this section must
               initiate the complaint procedure as soon as possible after the
               occurrence of the act or condition complained of, and not later
               than thirty (30) calendar days after the date the employee became
               aware, or by the exercise of reasonable diligence should have
               been aware, of the occurrence giving rise to the complaint. An
               employee who does not initiate the complaint procedure within
               the thirty (30) day period waives the right to file that complaint.

               (d) A remedy granted under this section may not extend back
               more than thirty (30) calendar days before the complaint was
               initiated.

               (e) The following complaint procedure is established:

                    Step I: The complainant shall reduce the complaint to
                    writing and present the complaint to the appointing authority
                    or the appointing authority’s designated representative. The
                    appointing authority or designee shall conduct any




               (4) A body corporate and politic of the state created by state statute.
               (5) A political subdivision (as defined in IC 36-1-2-13).
               (6) An inmate who is working in a state penal, charitable, correctional, or benevolent
             institution.
               (7) The state police department.
             (c) This subsection does not apply to a political subdivision, the ports of Indiana (established by
             IC 8-10-1-3), or the northern Indiana commuter transportation district (established under IC 8-5-
             15). The chief executive officer of a governmental entity that is exempt from this chapter under
             subsection (b) may elect to have this chapter apply to all or a part of the entity’s employees by
             submitting a written notice of the election to the director.



       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016                       Page 10 of 15
             investigation considered necessary and issue a decision, in
             writing, not later than fifteen (15) calendar days after the date
             the appointing authority receives the complaint.

             Step II: If the appointing authority or the appointing
             authority’s designated representative does not find in favor of
             the complainant, the complainant may submit the complaint
             to the director not later than fifteen (15) calendar days after
             the date of the appointing authority’s finding. The director or
             the director’s designee shall review the complaint and issue a
             decision not later than thirty (30) calendar days after the date
             the complaint is submitted to the director.

             Step III: If the employee is not satisfied with the director’s
             decision, the employee may submit an appeal in writing to
             the [SEAC] not later than fifteen (15) calendar days after the
             date the employee receives notice of the action taken by the
             director or the director’s designee. The [SEAC] shall
             determine whether all previous steps were completed
             properly and in a timely manner, and, subject to subsection
             (f), whether the employee and subject of the complaint meet
             the jurisdictional requirements. If a procedural or
             jurisdictional requirement is not met, the [SEAC] shall
             dismiss the appeal. If the procedural and jurisdictional
             requirements have been met, the [SEAC] shall conduct
             proceedings in accordance with IC 4-21.5-3.

                                                 ****

        (h) Decisions of the [SEAC] are subject to judicial review in
        accordance with IC 4-21.5-3.

        (i) An employee who is suspended or terminated after a hearing
        held by the state ethics commission is not entitled to use the
        procedure set forth in this section. An employee who seeks
        further review of a suspension or termination imposed by the
        state ethics commission must seek judicial review of the state
        ethics commission’s decision in accordance with IC 4-21.5-3.

Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016   Page 11 of 15
[19]   This administrative remedy is not generally available to ISP employees who

       have employment-related complaints, due to I.C. § 4-15-2.2-1(b)(7)’s express

       exemption of ISP from the various statutory provisions regulating the state civil

       service system. When an ISP employee’s complaint is based on an alleged

       violation of the WBL, however, the WBL brings the ISP complainant within

       the ambit of SEAC review for this limited purpose. Indeed, I.C. § 4-15-10-4(c)

       provides that “any state employee” disciplined for being a whistleblower is

       “entitled to process an appeal of the disciplinary action under the procedure as

       set forth in IC 4-15-2.2-42.” We conclude that the general exclusions delineated

       in I.C. § 4-15-2.2-1(b) do not foreclose this limited application of the SEAC

       review process to all state employees bringing a claim under the WBL.5


[20]   In this case, Shoemaker completed steps I, II, and III of the SEAC review

       process, but did not seek judicial review of the ALJ’s decision that his

       complaint was untimely filed. His belated assertion that the SEAC appeal

       process was not applicable to him and, therefore, futile is without merit.


[21]   Shoemaker next raises a novel argument that he was entitled to avoid the

       administrative process and file a breach of contract whistleblower claim




       5
         There are two other comparable whistleblower statutes – Ind. Code § 22-5-3-3 and Ind. Code § 36-1-8-8,
       applicable to employees whose private employer is under public contract and employees of a political
       subdivision, respectively. The only material difference between the whistleblower statutes lies in the express
       remedies provided by the legislature. I.C. § 36-1-8-8(c) provides for an appeal of the disciplinary action
       “under the procedure set forth in any personnel policy or collective bargaining agreement adopted by the
       political subdivision.” I.C. § 22-5-3-3(c), on the other hand, provides for an appeal of the disciplinary action
       “as a civil action in a court of general jurisdiction.”

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016                         Page 12 of 15
       pursuant to I.C. § 4-15-10-4. In support, Shoemaker relies exclusively on

       Whinery, 819 N.E.2d 465.


[22]   In Whinery, employees of the Indiana Department of Natural Resources

       brought a class action against the Director of the State Personnel Department

       (SPD), alleging that the SPD failed to comply with a salary statute and, thus,

       violated their contractual rights. This court held, in relevant part, that despite

       being employed at-will, a state employee

               may sue for violation of employment rights in contract, and the
               terms and conditions of the employee’s contract include “all
               relevant statutory provisions as if such provisions were
               specifically set out in the contract.” Foley v. Consol. City of
               Indianapolis, 421 N.E.2d 1160, 1163 (Ind. Ct. App. 1981). A
               government employee’s relationship with the State, although not
               necessarily defined by a written employment contract, is “purely
               contractual.” Laws having to do with remuneration become part
               of the employment contract, and so attach themselves as an
               incident thereof. Thus, the Employees’ state-employee status
               establishes a contractual relationship, and the remuneration
               provisions of P.L. 70 are an incident thereof.


       Whinery, 819 N.E.2d at 473 (some citations omitted). See also Richmond State

       Hosp. v. Brattain, 935 N.E.2d 212, 235 (Ind. Ct. App. 2010) (holding that

       “relevant state constitutional provisions are part of the state employees’

       contractual relationship with the State” and “consider[ing] relevant those

       constitutional provisions having to do with remuneration”) (emphasis in

       original), summarily aff’d in relevant part, 961 N.E.2d 1010 (Ind. 2012); Marter v.

       City of Vincennes, 82 N.E.2d 410, 412 (Ind. Ct. App. 1948) (“Laws having to do

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016   Page 13 of 15
       with tenure and remuneration became a part of that contract…and so attached

       themselves to the employment as an incident thereof.”).


[23]   We find Whinery distinguishable. The statute at issue in this case – the WBL –

       does not address anything along the lines of remuneration or tenure. More

       importantly, the WBL provides an express remedy for an alleged violation of

       the statute through an SEAC administrative appeal. We do not agree with

       Shoemaker that Whinery provides him with the right to avoid the administrative

       steps and turn directly to the courts by filing a breach of contract claim based on

       an alleged violation of the WBL.


[24]   We hold that a state employee seeking redress for an employment action

       allegedly taken in retaliation for whistleblowing activity must proceed with, and

       only with, the remedy expressly provided in the WBL.6 Shoemaker began his

       administrative appeal with the SEAC but did not seek judicial review of the

       ALJ’s determination that the administrative appeal was untimely filed.

       Accordingly, the trial court properly granted ISP’s motion for summary

       judgment in this separate breach of contract action filed by Shoemaker.


[25]   Judgment affirmed.




       6
        In his reply brief, Shoemaker directs us to I.C. § 4-15-10-6 as support for his argument that the WBL does
       not provide an exclusive remedy. Though not persuaded, we need not address this argument because
       Shoemaker has raised it for the first time in his reply brief. See I.A.E., Inc. v. Hall, 49 N.E.3d 138, 153 (Ind.
       Ct. App. 2015) (appellants are not permitted to present new arguments in their reply briefs), trans. denied.

       Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016                           Page 14 of 15
Bradford, J. and Pyle, J., concur.




Court of Appeals of Indiana | Opinion 49A02-1604-PL-879 | November 2, 2016   Page 15 of 15
