                                                                            FILED
                                                                     May 29 2020, 8:39 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Adam Lenkowsky                                           Monika Prekopa Talbot
Roberts Litigation Group                                 Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy J. Brown,                                        May 29, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-MI-2051
        v.                                               Appeal from the Marion Superior
                                                         Court
Indiana Department of                                    The Honorable Tim Oakes, Judge
Environmental Management,                                Trial Court Cause No.
Appellee-Respondent,                                     49D02-1810-MI-41395




Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020                                Page 1 of 27
                               Case Summary and Issues
[1]   Timothy Brown appealed his termination from the Indiana Department of

      Environmental Management (“IDEM”) to the State Employees’ Appeals

      Commission (“SEAC”), alleging that he was terminated in violation of

      Indiana’s Whistleblower Law based on three emails he sent to his supervisor

      concerning IDEM’s alleged misuse of public resources and violation of law.

      IDEM moved to dismiss Brown’s complaint, which the SEAC granted. Brown

      filed his first petition for judicial review and the trial court reversed the SEAC’s

      decision and remanded for further proceedings.


[2]   On remand, IDEM filed a motion for summary judgment. The SEAC granted

      IDEM’s motion and found that Brown’s emails constituted a “report” under the

      whistleblower statue, but he failed to show that the reports contained any

      violation of law or how IDEM was allegedly misusing funds. The SEAC also

      concluded there was no causal link between Brown’s termination and his

      whistleblower claim. Brown filed a second petition for judicial review, which

      the trial court denied. Brown appeals, raising six issues which we consolidate

      into two restated issues: (1) whether the trial court erred in determining that the

      SEAC’s decision that Brown was not a whistleblower was not arbitrary,

      capricious, or an abuse of discretion; and (2) whether the trial court erred in

      concluding the SEAC’s decision was supported by substantial evidence.

      Concluding the trial court did not err in either determination, we affirm.



                            Facts and Procedural History
      Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020           Page 2 of 27
[3]   Brown was employed by IDEM for approximately twenty-one years before he

      was terminated on May 6, 2016. At the time of his termination, he was an

      Environmental Chemist II in the Air Toxics Section and was considered an

      unclassified, at-will employee. His May 6 termination letter stated, in pertinent

      part:


              Your job responsibility during the month of April, 2016 included
              management of the primary Gas Chromatograph/Mass
              Spectrometer (GCMS) system. It was confirmed that you had
              run samples without verifying a valid calibration, one of three
              quality control standards required prior to the daily analysis of
              field samples. On at least two occasions, you analyzed samples
              and reported invalid data as valid. Your failure to perform the
              basic task of checking the calibration does not meet performance
              standards and reporting false data is considered a dishonest act.
              Both actions are unacceptable, do not meet agency standards,
              and are the reason[s] for this disciplinary action.


              You are hereby notified that effective May 6, 2016, your
              employment is terminated in accordance with IC 4-15-2.2-24
              which provides “An employee in the unclassified service is an
              employee at will and serves at the pleasure of the employee’s
              appointing authority . . . and may be dismissed, demoted,
              disciplined or transferred for any reason that does not contravene
              public policy.”


      Appendix of Appellant, Volume II at 42.




      Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020         Page 3 of 27
[4]   Brown appealed his termination to the SEAC on August 3, 2016, alleging six

      claims, including a whistleblower retaliation claim.1 See id. at 49-64.

      Specifically, Brown alleged that he was terminated for being a whistleblower in

      violation of Indiana Code section 4-15-10-4, Indiana’s State Employee

      Whistleblower Law (“WBL”)2 for emailing his supervisor and inadvertently

      revealing “what could be viewed as federal grant fraud[.]” Id. at 59. Brown

      relied on three April 2016 emails as his “report” but did not attach them to his

      complaint or provide them to the SEAC.


[5]   On October 7, 2016, IDEM filed a motion to dismiss and supporting brief, in

      which it argued that SEAC lacked subject matter jurisdiction to hear Brown’s

      complaint and Brown failed to state a claim upon which relief could be granted.

      See id. at 78. Specifically, IDEM alleged that Brown failed to “report”

      violations as required by statute and failed to establish “that a public policy

      exception [pursuant to Indiana Code section 4-15-2.2-42(f)3] to the employment

      at will doctrine was the reason for his discharge.” Id. And on December 16,

      2016, the SEAC granted IDEM’s motion, finding, in part, that Brown failed to

      offer any evidence to show his alleged protected activity was related to his




      1
       In addition, Brown alleged abuse of process, supervisor breach of fiduciary duty, conspiracy, false
      accusation and estoppel, and breach of contract. Brown later voluntarily dropped these claims leaving only
      his whistleblower retaliation claim for the SEAC to analyze. See id. at 116 n.2.
      2
          This statute is contained in the State Employees’ Bill of Rights. Ind. Code ch. 4-15-10.
      3
        This section states: “An unclassified employee must establish that the commission has subject matter
      jurisdiction to hear the employee’s wrongful discharge claim by establishing that a public policy exception to
      the employment at will doctrine was the reason for the employee’s discharge. The former employee has the
      burden of proof on this issue.”

      Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020                                  Page 4 of 27
      termination and that he was terminated for reporting invalid data. See id. at

      121, ¶¶ 16-17. The SEAC concluded no other public policy exception had been

      raised and therefore, the SEAC lacked subject matter jurisdiction to hear

      Brown’s complaint. Id. at ¶ 18.


[6]   Brown subsequently sought judicial review of the SEAC’s order by filing his

      Verified Petition for Judicial Review on January 6, 2017. In his petition,

      Brown alleged that the SEAC “prematurely concluded that his allegations

      demonstrated that he had not ‘reported’ anything because his communication

      was ‘inadvertent’” and that the SEAC erred in concluding he had not

      demonstrated a causal connection between his termination and alleged

      whistleblowing activity. Id. at 131, ¶¶ 22, 25.


[7]   On November 21, 2017, the trial court issued an order granting Brown’s

      petition and remanding the matter to the SEAC for further proceedings. In its

      order, the trial court concluded that Brown had sufficiently stated a claim for

      relief. The trial court concluded that the SEAC clearly erred in determining the

      reason for Brown’s discharge “when this could not be decided without reference

      to matters outside of the pleadings” and that the SEAC’s order dismissing

      Brown’s complaint without evidence of Brown’s emails was arbitrary and

      capricious, in excess of authority, without observance of legal procedure, and

      otherwise unsupported by substantial evidence. Id. at 140, ¶¶ 21, 25. The

      matter was remanded to the SEAC.




      Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020         Page 5 of 27
[8]   On June 18, 2018, IDEM filed a motion for summary judgment and designated

      certain evidence, including Brown’s termination letter and Brown’s three April

      2016 emails he sent to his supervisor, Stacey Pfeffer:


              [April 26, 2016 E-mail]


              Please recall the Friday before you left for your staycation and
              the controversy that afternoon in the lab when I was trying to
              explain to you that I strongly suspected Russell [one of Brown’s
              co-workers] of deliberately engineering the backlog in the canister
              analysis? Below is the factual basis of my allegations in writing. .
              ..


              On Wednesday March 30, 2016, we received complaint samples
              from OAQ. On Thursday, March 31, 2016, Russell Bowman ran
              two calibration checks on the GCMSii. The first one failed, the
              second one passed[.] No more calibration checks were run after
              those two allegedly failed, and therefore no can[ister] samples
              either. Not only did the second calibration check and BFB tune
              pass according to the [procedures] that Russell himself wrote,
              Russell did not bother to load up the sampling tree with
              backlogged sample canisters that needed to be analyzed,
              including the two complaint samples. Russell also left a backlog
              of samples to be logged in for the next staffmember who was
              taking over the workstation[.] When Russell was asked why
              Russell did not run a batch of canisters and do the complaint
              samples, Russell made the claim that the calibration check
              performed on March 31 did not pass, when in fact the calibration
              check had indeed passed as well as the BFB. In addition, the
              staffmember taking over Russell’s work station for 2nd quarter
              had never performed a complaint sample on GCMS and was
              unaware that an official memorandum had to be written for the
              lab reports. Russell did not apprise the staffmember taking over
              Russell’s position of this part of the procedure. Nor did Russell
              apprise the acting branch chief. Another result of Russell’s
      Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020          Page 6 of 27
        actions, or lack thereof, was that the complaint analysis was
        unnecessarily delayed by at least a week . . . and the writing of
        the memorandum by at least 4 weeks. The willful negligence and
        deception demonstrated by Russell antagonized and provoked
        the anger of the staffmember taking over Russell’s work station,
        which created unnecessary controversy and undermined group
        trust and comradery.


        ***


        [April 28, 2016 E-mail titled “More Russell antics . . .”]


        Russell began experiencing contamination with the TNMOC
        instrument the last week of first quarter. Certification canisters
        were not coming out clean enough and a backlog was beginning
        to develop. When this kind of contamination . . . occurs, an
        experienced air chemist will first try the simplest and most
        effective remedy, and that is applying a heat gun to the injection
        lines. Russell did not try this at all but instead, tried the most
        elaborate and invasive remedies first[.] These troubleshooting
        efforts did not work and the result was the same – a
        contaminated system. The next ECII to take over Russell’s
        workstation during 2nd quarter assumed Russell had tried the
        obvious heat gun technique first. At this time, the ECII put to
        task a trainee to do TNMOC duty, and although a few canisters
        did pass certification, the luck quickly ran out and troublesome
        contamination was still evident. At the end of the April 25 th
        work day, the ECII trainer realized Russel[l] had not used the
        heat gun, and so instructed the trainee to try the heat gun. A few
        days passed, and the ECII trainer asked the trainee if he had tried
        the heat gun method. The trainee response . . . was “Russell said
        the heat gun does not work”. Not only that but in an
        uncharacteristic move, Russell feverishly volunteered to “help”
        the trainee dismantle the six port valve and sonicate the parts . . .
        again! It is said the definition of insanity is doing something over
        and over again that clearly does not work. It definitely raises a
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020            Page 7 of 27
              question about Russell’s masters degree in chemistry and 10
              years of Air Toxics experience. Anyway, I speculate that
              Russell’s motivation arose from a combination of Russell’s
              inclination to a) satisfy his OCD like urges, b) defy his fellow
              chemists, and c) deliberately mislead the trainee down a path of
              inevitable chronic backlog. Not only was canister backlog
              growing and growing, it also became apparent that the trainee
              was getting demoralized and feeling stressed. Yet the trainee was
              still confident in Russell’s guidance to the point of questioning
              the original trainer’s advice. But anyway Russell reassembled the
              six port valve apparatus and the results were of course the same.
              Still contaminated. . . .


              [T]his is not the only time I have caught Russell giving . . .
              questionable advice, if not deliberate misinformation. It is
              distracting, divisive, and it wastes time. . . . A friend of mine
              worked at Chevy for 40 years and told me stories of the
              occasional workman who would rig his machine to break all the
              time. But these workmen were motivated by having extended
              break time while waiting for the repairman.


              ***


              [April 29, 2016 E-mail]


              I might also suggest keeping Russell out of the Toxics area and
              just have him stay in his cubicle. [Another co-worker] and I can
              handle it.


      Id. at 194, 200, 202.


[9]   IDEM argued Brown did not “report” a violation of law and his claim of

      “workplace sabotage” was not a report of the existence of misuse of public


      Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020            Page 8 of 27
resources for which IDEM retaliated against him. Id. at 177-84. And therefore,

IDEM argued, Brown did not report a violation of law or misuse of public

resources to his supervisor and failed to state a claim for wrongful termination.

On September 18, the SEAC issued its order granting IDEM’s motion for

summary judgment and finding, in relevant part:


        23. The first email, dated April 26, 2016, is the email [Brown]
        relied upon above for his contention that [IDEM] violated federal
        law. Having already found in favor of [IDEM] on this issue, the
        [administrative law judge (“ALJ”)] also finds that nothing in the
        email would lead Pfeffer or anyone else to believe that a misuse
        of public resources was occurring. Instead, the email’s tone is
        simply [Brown] complaining to Pfeffer that Bowman was not
        doing his job correctly.


        24. The second email, dated April 28, 2016 was entitled,
        “More Russell (Bowman) antics”. In it, [Brown] again
        complains about Bowman not doing his job correctly with regard
        to using a heat gun to solve a problem with contamination of
        some of the samples. After listing his complaints, [Brown]
        concludes by saying that Bowman’s antics were to satisfy
        Bowman’s OCD urges, defy his fellow chemists and deliberately
        mislead a trainee down a path of inevitable chronic backlog.
        Again, the ALJ finds that nothing in the above email would lead
        Pfeffer to believe that [IDEM] was committing grant fraud, or
        was otherwise misusing public resources. Therefore, the ALJ
        finds [Brown’s] reliance upon this email unconvincing.


        25. [Brown’s] final email to Pfeffer was dated April 29, 201[6]
        and contained only one line-“I might also suggest keeping




Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020         Page 9 of 27
           [Bowman] out of the Toxics area and just have him stay in his
           cubicle. [another employee] and I can handle it[.4]”


           26. There can be no doubt that [Brown] makes no reference of
           any kind to misuse of funds in the above email. It is simply a
           request to Pfeffer to keep Bowman out of the area in which
           [Brown] was working, presumably because of Bowman’s actions
           noted in [Brown’s] earlier two (2) emails. The ALJ finds that
           [Brown] cannot rely on this email to show that [IDEM] misused
           public funds.


           27. While [Brown] correctly made a report under the [WBL],
           he failed to show how such report contained a violation of a
           federal, state or local law, or how [IDEM] was allegedly
           misusing public funds such that [Brown] should not have been
           terminated.


           28. [Brown] was terminated because his actions of running
           samples without verifying the valid calibration and on at least
           two occasions analyzing samples and reporting invalid data as
           valid did not meet [IDEM’s] standards, not because he
           inadvertently emailed his supervisor about possible federal grant
           fraud perpetuated by [IDEM]. Therefore, the ALJ finds that
           there is no causal link between his termination and his attempt at
           making a whistleblower claim.


           29. No other public policy exception has been raised by
           [Brown], and therefore, the ALJ concludes that SEAC lacks
           subject matter jurisdiction to hear this Complaint. Thus,
           [IDEM’s] Motion [for Summary Judgment] must be granted.




4
    The alterations in this finding appeared in the original order.


Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020           Page 10 of 27
       Id., Vol. V at 244-45 (record citations omitted).


[10]   Brown subsequently filed another petition for judicial review arguing the

       SEAC’s order granting summary judgment in favor of IDEM was arbitrary and

       capricious, an abuse of discretion, and unsupported by substantial evidence.

       Following a hearing on August 19, 2019, the trial court issued an order denying

       Brown’s verified petition for judicial review concluding, in pertinent part:


               [Conclusions of Law]


               12. [Brown] contends that the law-of-the-case doctrine
               forecloses many of [IDEM’s] arguments, as a result of [the trial
               court’s] previous judicial review decision reversing SEAC’s order
               on IDEM’s motion to dismiss. “The law-of-the-case doctrine
               provides that an appellate court’s determination of a legal issue
               binds both the trial court and the court on appeal in any
               subsequent appeal involving the same case and substantially the
               same facts.” Luhnow[ v. Horn], 760 N.E.2d [621, 625 (Ind. Ct.
               App. 2001)]. However, a motion to dismiss and a motion for
               summary judgment are two different procedural vehicles which
               address different legal issues. Id. at 627. Moreover, SEAC’s
               summary judgment relied on evidence beyond that considered in
               the motion to dismiss, namely, the e-mails which were the
               alleged “report” under Indiana’s WB[L]. Because SEAC’s
               summary judgment order addresses a different legal issue and
               different evidence, the law-of-the-case doctrine does not apply
               here. Id. at 627-28.


               13. Under the federal whistleblower statute, 5 U.S.C. § 2302
               (b)(8)-(9), federal courts apply the disinterested observer test to
               determine whether someone made a “report” of a violation of
               law. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)[,
               cert. denied, 528 U.S. 1153 (2000)]. Under this test, a federal

       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020              Page 11 of 27
        employee has made a “report” if “a disinterested observer with
        knowledge of the essential facts known to and readily
        ascertainable by the employee [could] reasonably conclude that
        the actions of the government evidence [a violation of law].”
        [Id.] “A purely subjective perspective of an employee is not
        sufficient even if shared by other employees.” Id.


        ***


        16. Since his termination, [Brown] has alleged that the April
        26, 2016 e-mail was a report about IDEM falsely reporting data
        to the [Environmental Protection Agency (“EPA”).] However, a
        disinterested observer reading the April 26, 2016 e-mail could not
        reasonably conclude that [Brown] was making a report that
        IDEM was falsely reporting data to the EPA. [Brown] was
        complaining only about Bowman’s poor workplace performance
        and was not alleging a violation of law under the WB[L].


        17. [Brown] next alleges that he was wrongly terminated for
        reporting a misuse of public resources under Indiana’s WB[L].
        [Brown] relies on the April 26, 2016 e-mail, an April 28, 2016 e-
        mail, and an April 29, 201[6] e-mail, as evidence of a “report”
        under Indiana’s WB[L].


        18. The Court of Appeals interpreted the phrase, “misuse of
        public resources” under a similarly worded whistleblower statute,
        Indiana Code § 22-5-3-3, which is directed to state contractors.
        Coutee v. Lafayette Neighborhood Hous. Servs., Inc., 792 N.E.2d 907,
        914 (Ind. Ct. App. 2003). Coutee held that the phrase “misuse of
        public resources,” “contemplates a direct expenditure or use of
        public funds, property, or resources for a purpose other than that
        contemplated by the contract in question.” [Id.] at 914. The
        phrase “misuse of public resources” should not be so broadly
        interpreted to apply to “allegations of ineffective management
        style that might result in increased administrative costs.” Id.

Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020          Page 12 of 27
        19. Indiana Code § 22-5-3-3 is very similar to Indiana Code §
        4-15-10-4, which is at issue here. And the particular phrase being
        interpreted, “misuse of public resources,” is identical to the
        language in Indiana Code § 4-15-10-4(a)(4), thus Coutee’s
        interpretation of “misuse of public resources” is applicable here.


        20. Coutee explains that to show a misuse of public resources,
        the “report” must allege that certain funds were intended for a
        certain purpose but were subsequently used for another reason.
        Coutee, 792 N.E.2d at 914. But here, none of the emails show
        what funds were at issue or how they were used for another
        purpose. [Brown’s] complaints about Bowman’s alleged
        mismanagement, intentional or not, suggests that there might be
        increased administrative costs. But this does not rise to the level
        required in Coutee to support a claim of misuse of public funds.
        None of [Brown’s] three emails are a report about the misuse of
        public resources.


        21. Finally, SEAC found that: “[Brown] was terminated
        because his actions of running samples without verifying the
        valid calibration and on at least two occasions analyzing samples
        and reporting invalid data as valid did not meet [IDEM’s]
        standards, not because he inadvertently emailed his supervisor
        about possible federal grant fraud perpetuated by [IDEM].”


        22. [Brown] alleges that this finding is not supported by
        substantial evidence and was arbitrary and capricious.


        23. SEAC’s’ conclusion regarding the reason for [Brown’s]
        termination was based on a finding of fact, paragraph 19, in
        SEAC’s decision, which states:


                 [IDEM] felt that [Brown’s] actions of running samples
                 without verifying the valid calibration and on at least two
                 occasions analyzing samples and reporting invalid data as
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020           Page 13 of 27
                 valid did not meet agency standards, so it terminated
                 [Brown] on May 6, 2016, for failure to perform basic tasks
                 and falsifying data.


        24. This finding is supported by paragraph 138 of [Brown’s]
        complaint, in which [Brown] state[s] that “his career was
        summarily terminated based on an allegedly falsification of data
        and poor work performance,” and by [IDEM’s] Exhibit A,
        Brown’s termination letter, which was designated as evidence by
        both parties.


        25. “Substantial evidence is more than a scintilla, but
        something less than a preponderance of the evidence.” State v.
        Carmel Healthcare Mgmt., Inc., 660 N.E.2d 1379, 1384 (Ind. Ct.
        App. 1996). SEAC’s finding was supported by [Brown’s]
        complaint and Brown’s termination letter, which is substantial
        evidence to support SEAC’s conclusion of law and was not
        arbitrary and capricious.


        26. Moreover, a party to judicial review must prove harm or
        prejudice prior to the court finding reversible error. See Indiana
        State Bd. Of Embalmers & Funeral Directors v. Kaufman, 463 N.E.2d
        513, 520 (Ind. Ct. App. 1984).


        27. [Brown] has not shown that this conclusion of law causes
        [him] any harm. [Brown] was an at-will employee, and IDEM
        could terminate him for any reason that is not a violation of law.
        SEAC properly concluded that IDEM’s stated reason for
        Brown’s termination was not a pretext for retaliatory discharge.


        [2]8. The decision by SEAC was not arbitrary, capricious, or an
        abuse of discretion, and the decision was supported by
        substantial evidence. [Brown] has not shown that SEAC
        decision warrants reversal under Indiana Code § 4-21.5-5-14(d).


Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020          Page 14 of 27
       Appealed Order 7-11 (footnote and record citations omitted). Brown now

       appeals.



                                  Discussion and Decision
                                      I. Standard of Review
[11]   Brown appeals from the trial court’s denial of his petition for judicial review of

       the SEAC’s decision. Under the Administrative Orders and Procedures Act, a

       court may grant relief only if it determines that a person seeking judicial relief

       has been prejudiced by an agency action that is:


               (1) arbitrary, capricious, an abuse of discretion, or otherwise not
               in accordance with law; (2) contrary to constitutional right,
               power, privilege, or immunity; (3) in excess of statutory
               jurisdiction, authority, or limitations, or short of statutory right;
               (4) without observance of procedure required by law; or (5)
               unsupported by substantial evidence.


       Ind. Code § 4-21.5-5-14(d). “A decision is deemed arbitrary and capricious

       when it is patently unreasonable and is made without consideration of the facts

       and in total disregard of the circumstances [and] lack[s] any basis which might

       lead a reasonable person to the same conclusion.” Ind. Alcohol and Tobacco

       Comm’n v. Spirited Sales, LLC, 79 N.E.3d 371, 380 (Ind. 2017) (internal citation

       and quotation omitted). The “burden of demonstrating the invalidity of agency

       action is on the party to the judicial review proceeding asserting invalidity.”

       Ind. Code § 4-21.5-5-14(a). “Our review of agency action is intentionally

       limited, as we recognize an agency has expertise in its field and the public relies

       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020            Page 15 of 27
       on its authority to govern in that area.” Spirited Sales, LLC, 79 N.E.3d at 375

       (citation omitted). Although we “defer to the agency’s findings if they are

       supported by substantial evidence[,]” we review an agency’s conclusions of law

       de novo. Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614, 619 (Ind. 2019).

       “An interpretation of a statute by an administrative agency charged with the

       duty of enforcing the statute is entitled to great weight, unless this interpretation

       would be inconsistent with the statute itself.” LTV Steel Co. v. Griffin, 730

       N.E.2d 1251, 1257 (Ind. 2000). Moreover, we do not reweigh the evidence;

       rather, we consider the record in the light most favorable to the agency’s

       decision. Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 992 (Ind. 2014).

       We will affirm the agency’s judgment unless it is clearly erroneous. Id.


                                    II. Whistleblower Claim
[12]   We begin by briefly addressing Brown’s employment status at the time of his

       termination. It is undisputed that, at the time, Brown was an unclassified at-

       will employee:


               (a) An employee in the unclassified service is an employee at
               will and serves at the pleasure of the employee’s appointing
               authority.


               (b) An employee in the unclassified service may be dismissed,
               demoted, disciplined, or transferred for any reason that does not
               contravene public policy.




       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020            Page 16 of 27
       Ind. Code § 4-15-2.2-24 (emphasis added). Here, Brown claims he was

       terminated in retaliation for his alleged whistleblower claim – a public policy

       exception to his at-will employment status.


                                 A. Law-of-the-Case Doctrine
[13]   Brown argues the trial court erred in determining that the law-of-the-case

       doctrine was inapplicable. Brown argued to the trial court that this “doctrine

       forecloses many of [IDEM’s] arguments, as a result of [the trial court’s]

       previous judicial review decision reversing SEAC’s order on IDEM’s motion to

       dismiss.” Appealed Order at 7, ¶12. We conclude the trial court did not err.


[14]   The law-of-the-case doctrine provides that an appellate court’s determination of

       a legal issue binds both the trial court and court on appeal in any subsequent

       appeal involving the same case and substantially the same facts. In re Change to

       Established Water Level of Lake of Woods in Marshall Cty., 822 N.E.2d 1032, 1042

       (Ind. Ct. App. 2005), trans. denied. The doctrine is a discretionary tool with the

       purpose of minimizing unnecessary repeated litigation of legal issues once they

       have been resolved by an appellate court. Think Tank Software Dev. Corp. v.

       Chester, Inc., 30 N.E.3d 738, 744-45 (Ind. Ct. App. 2015), trans. denied. To

       invoke the doctrine, the matters decided in the earlier appeal must clearly

       appear to be the only possible construction of a decision. Dutchmen Mfg., Inc. v.

       Reynolds, 891 N.E.2d 1074, 1082-83 (Ind. Ct. App. 2008), trans. denied. “Thus,

       questions not conclusively decided in the earlier appeal do not become the law

       of the case.” Id. at 1083.


       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020         Page 17 of 27
[15]   This doctrine is inapplicable to the instant matter for several reasons. First, this

       doctrine is applicable only when an appellate court determines a legal issue, not

       a trial court. Here, following the SEAC’s order granting IDEM’s motion to

       dismiss, Brown filed his first petition for judicial review with the trial court.

       The trial court reversed the SEAC’s decision and remanded for further

       proceedings. No issues were ever determined by an appellate court such that

       this doctrine would be applicable.


[16]   Second, although the trial court here is acting as a reviewing court to some

       extent, even if the doctrine were applicable to bind the trial court to its own

       decision in subsequent phases of litigation, its decision on a motion to dismiss –

       based solely on the pleadings – cannot bind it on a motion for summary

       judgment, which has an entirely different standard of review. In a similar case,

       Luhnow v. Horn, the trial court granted a party’s motion for judgment on the

       pleadings, this court reversed and remanded, and the trial court subsequently

       granted a motion for summary judgment. 760 N.E.2d at 624. On appeal, a

       panel of this court affirmed the trial court and held that the law-of-the-case

       doctrine was inapplicable because the standards of review for judgment on the

       pleadings and summary judgment are different, the appellate court did not

       consider the merits of a party’s complaint in the prior appeal, and the trial

       court, in granting summary judgment, “look[ed] beyond the pleadings to the

       designated material[.]” Id. at 625-28. We conclude that if the doctrine was not

       invoked in Luhnow, a case very similar to the instant case, the doctrine is

       inapplicable here where there was no intervening appellate court decision.


       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020           Page 18 of 27
[17]   And finally, additional evidence was considered by the SEAC, including

       Brown’s e-mails, on remand. Therefore, the trial court’s order regarding

       Brown’s first petition, in which it remanded the matter to the SEAC, is not

       binding on the trial court or this court. The trial court did not err in concluding

       the law-of-the-case doctrine is not applicable here.


                 B. Interpretation of Indiana’s Whistleblower Act
[18]   Brown argues he was terminated in retaliation for being a whistleblower – a

       public policy exception to the at-will employment status of an unclassified

       employee – by reporting IDEM’s alleged misuse of public resources and

       violation of law. Both the SEAC and trial court disagreed and concluded

       Brown was not reporting the misuse of public resources or a violation of law in

       his emails to his supervisor. He contends the trial court incorrectly interpreted

       the WBL for two reasons. First, he claims the trial court was incorrect because

       he reported intentional misconduct by his coworker, not simply ineffective

       management that resulted in increased administrative costs. And second, he

       claims the trial court’s interpretation is incorrect because the WBL is broader

       than the government contractor whistleblower statute, Indiana Code section 22-

       5-3-3, used by the trial court in interpreting the phrase “misuse of public




       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020         Page 19 of 27
       resources” contained in the state employee’s WBL.5 We review an agency’s

       conclusions of law de novo. Moriarity, 113 N.E.3d at 619.


[19]   The state employee whistleblower statute at issue in this case, Indiana Code

       section 4-15-10-4, provides:


                (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[.]




       5
         Brown states that the SEAC did not appear to consider whether the WBL would apply to intentional
       misconduct but instead concluded his complaint involved allegations that his coworker was not doing his job
       properly without citing caselaw interpreting the government contractor whistleblower statute. See Amended
       Brief of Appellant at 22 n.9. And “to the extent that such an interpretation can be inferred, [Brown contends]
       it still [is] an improper determination which this Court can review de novo.” Id.

       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020                                Page 20 of 27
[20]   Here, the SEAC concluded that Brown’s April 2016 emails constituted a

       “report” under the WBL but did not contain a report concerning the misuse of

       public resources or a violation of law such that he should not have been terminated.

       App. of Appellant, Vol. V at 244-45, ¶¶ 23-27. Relying on this court’s

       interpretation of the “misuse of public resources” of the state contractor

       whistleblower statute in Coutee, 792 N.E.2d at 914, the trial court agreed that

       Brown did not report the misuse of public resources or a violation of law.

       Appealed Order at 9-10; see also Indiana Code § 22-5-3-3.6 The trial court found

       that the phrase “misuse of public resources” in the state contractor

       whistleblower statute is identical to the language at issue here such that Coutee’s

       interpretation of the phrase in the state contractor statute is applicable here. See

       Appealed Order at 9, ¶ 19. We agree.


[21]   In Coutee, an employee was fired by her employer, a private non-profit

       corporation, after she had expressed her concern about the management and

       “direction of the organization” to an employee of the non-profit corporation

       that provided funding to her employer. 792 N.E.2d at 909. The employee sued

       her employer alleging she had been terminated in retaliation for reporting what

       she believed to be misuse of public resources, in violation of the state contractor




       6
         The statute provides, in part: “(a) An employee of a private employer that is under public contract 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 . . . concerning the execution of public contract[.]” In addition, a contractor may not be
       dismissed from employment for having made such a report. Ind. Code § 22-5-3-3(b)(1).

       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020                                       Page 21 of 27
       WBL. Id. at 909-10. As a case of first impression, a panel of this court

       addressed the “misuse of public resources” provision in the statute and held


               that “misuse of public resources” as used in IC 22-5-3-3
               contemplates a direct expenditure or use of public funds,
               property, or resources for a purpose other than that contemplated
               by the contract in question. Under this construction, “misuse”
               includes instances where public funds earmarked for a specific
               purpose by the contract were misspent, whether intentionally or
               not, for another purpose, whether legitimate or not, and does not
               necessarily require ethical impropriety[.] For example, misuse
               would exist if an employee used public funds for personal
               purposes or applied the funds to a cause or purpose contrary to or
               beyond the scope of the directive(s) of the contract. Given our
               construction, we conclude that misuse in the context of IC 22-5-
               3-3 does not include allegations of ineffective management style
               that might result in increased administrative costs to the
               employer due to employee turnover.


       Id. at 914. Given the identical language of the statutes, we are unpersuaded by

       Brown’s argument that the trial court erred in employing this definition. As

       such, applying that definition here, we cannot conclude that any of Brown’s

       April 2016 emails contained an allegation of the misuse of public resources.


[22]   In his April 26, 2016 email, Brown complained of Russell’s poor work

       performance with respect to two calibration checks. Brown further alleged that

       the result of Russell’s “actions, or lack thereof, was that the complaint analysis

       was unnecessarily delayed by at least a week[.]” App. of Appellant, Vol. II at

       194. Brown characterized Russell’s behavior as “willful negligence and

       deception[,]” which he believed “created unnecessary controversy and


       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020         Page 22 of 27
       undermined group trust and comradery.” Id. In Brown’s April 28 email, he

       again outlined an instance concerning Russell’s work performance alleging that

       he failed to use a heat gun to remedy a contamination issue but instead “tried

       the most elaborate and invasive remedies first[.]” Id. at 200. This led Brown to

       question Russell’s education and experience; he speculated that Russell

       intentionally acted in this manner to “a) satisfy his OCD like urges, b) defy his

       fellow chemists, and c) deliberately mislead the trainee down a path of

       inevitable chronic backlog.” Id. Brown also wrote that “this [was] not the only

       time [he has] caught Russell giving . . . questionable advice, if not deliberate

       misinformation. It is distracting, divisive, and it wastes time.” Id. Finally, in

       Brown’s final email to Pfeffer on April 29, he suggested that Russell stay out of

       the Air Toxics area and remain in his cubicle because he and another coworker

       could handle the work. See id. at 202.


[23]   Brown did not identify any public funds or resources at issue and did not allege

       the misuse of a direct expenditure, public funds, or public resources. In these

       emails, Brown detailed only what he believed to be Russell’s inadequate work

       performance and questionable advice and actions, intentional or not, which he

       believed led to a backlog and wasted time. Nor did Brown allege that Russell

       or any other IDEM employee “used public funds for personal purposes or

       applied the funds to a cause or purpose contrary” to IDEM or the State of

       Indiana. Coutee, 792 N.E.2d at 914.


[24]   In addition, Brown argued that his emails contained a report of a violation of

       law: that IDEM was reporting false data to the EPA. In determining whether

       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020          Page 23 of 27
       Brown reported a violation of law in his emails, the trial court looked to the

       federal Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8), and the

       federal courts’ interpretation thereof for guidance. Appealed Order at 7-8, ¶ 13.

       Federal courts apply a disinterested person test to determine whether an

       employee reported a violation of law: “could a disinterested observer with

       knowledge of the essential facts known to and readily ascertainable by the

       employee reasonably conclude that the actions of the government evidence [a

       violation of law]?” Lachance, 174 F.3d at 1381. And “[a] purely subjective

       perspective of an employee is not sufficient even if shared by other employees.”

       Id. We conclude a disinterested observer could not reasonably conclude from

       Brown’s emails that IDEM was violating the law by reporting false data to the

       EPA.


[25]   In sum, Brown never once mentioned public funds or resources; he has not

       shown how he alleged any violation of law and a disinterested observer could

       not reasonably conclude IDEM was violating any law based on Brown’s

       emails. As such, Brown did not report the misuse of public resources or a

       violation of law protected by the WBL. Therefore, the trial court did not err in

       determining that the SEAC’s decision that Brown was not a whistleblower was

       not arbitrary, capricious, or an abuse of discretion.


                                    III. Substantial Evidence
[26]   Brown also contends the SEAC’s decision was not supported by substantial

       evidence claiming that “there was not a scintilla of evidence” supporting its


       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020        Page 24 of 27
       decision. Amended Brief of Appellant at 18. Specifically, Brown asserts that

       the SEAC’s finding that his emails were merely complaints about his coworker

       was “simply . . . an incorrect reading of his emails” and instead, the emails

       “conclusively demonstrate that [he] was not simply complaining about his co-

       worker’s inability to do his job, but his deliberate conduct contrary to IDEM’s

       directives[, which] falls squarely within the protections afforded” by the WBL.

       Id. at 24-25. We disagree and conclude the SEAC’s decision was supported by

       substantial evidence.


[27]   Our standard for reviewing administrative agency decisions is well settled: to

       determine whether an administrative decision is supported by substantial

       evidence, a trial court must examine the whole record to determine whether the

       decision “lacks a reasonably sound basis of evidentiary support.” 255 Morris,

       LLC v. Ind. Alcohol & Tobacco Comm’n, 93 N.E.3d 1149, 1153 (Ind. Ct. App.

       2018). And when reviewing an administrative agency’s decision, this court

       stands in the same position as the trial court. Id.


               [We] may not substitute [our] judgment on factual matters for
               that of the agency and [are] bound by the agency’s findings of
               fact if [the findings] are supported by substantial evidence. [We]
               review the record in the light most favorable to the administrative
               proceedings and are prohibited from reweighing the evidence or
               judging the credibility of witnesses.


       Id. (quotation and internal citation omitted).


[28]   Substantial evidence is defined as “more than speculation and conjecture yet

       less than a preponderance of evidence. Substantial evidence means such
       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020         Page 25 of 27
       relevant evidence as a reasonable mind might accept as adequate to support a

       conclusion.” State v. Mills, 76 N.E.3d 861, 870 (Ind. Ct. App. 2017), trans.

       denied. Here, IDEM’s May 6 termination letter to Brown stated that “[o]n at

       least two occasions, you analyzed samples and reported invalid data as valid.

       Your failure to perform the basic task of checking the calibration does not meet

       performance standards and reporting false data is considered a dishonest act.

       Both actions are unacceptable, do not meet agency standards, and are the

       reason[s] for this disciplinary action.” App. of Appellant, Vol. II at 42.

       Furthermore, the SEAC found that Brown’s emails did not contain a report of

       misuse of public resources or a violation of law.


[29]   We conclude that IDEM’s termination letter to Brown and Brown’s emails

       support the SEAC’s finding that Brown’s emails were merely complaints about

       his coworker and its conclusion that Brown was not a whistleblower. Brown’s

       argument to the contrary amounts to an invitation for us to reweigh the

       evidence in his favor, which we cannot do. 255 Morris, LLC, 93 N.E.3d at 1153.

       Therefore, the trial court did not err in concluding the SEAC’s decision was

       supported by substantial evidence.7




       7
        Brown also takes issue with the SEAC’s conclusion that there was no causal link between his termination
       and his whistleblower claim. Specifically, Brown argues that the SEAC’s causation determination was
       arbitrary, capricious, and an abuse of discretion because the SEAC did not call for the submission of any
       evidence and therefore, he did not present “all material pertinent to [the summary judgment motion] because
       IDEM had stated they were not arguing for Summary Judgment based on causation”; the determination
       violated his due process rights because the SEAC did not make a finding but merely recited what IDEM
       “felt” and it failed to provide a reason for disregarding his evidence; and the determination was not supported
       by substantial evidence. Amended Br. of Appellant at 14-17. In addition, Brown argued that the SEAC’s


       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020                                 Page 26 of 27
[30]   In sum, we cannot conclude the SEAC’s decision was arbitrary, capricious, an

       abuse of discretion, or unsupported by substantial evidence. Therefore, the trial

       court did not err in denying Brown’s petition for judicial review.



                                                Conclusion
[31]   For the reasons set forth above, we conclude the trial court did not err in

       concluding the SEAC’s decision that Brown was not a whistleblower was not

       arbitrary, capricious, or an abuse of discretion or in concluding the SEAC’s

       decision was supported by substantial evidence. Accordingly, the judgment of

       the trial court is affirmed.


[32]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       findings of fact were unreasonable and the agency “reached its conclusion without any analysis of [his]
       evidence, which specifically explained why he had not done what IDEM alleged” in his termination letter.
       Id. at 20. Because we agree that Brown’s reports were not protected by the WBL and he therefore failed to
       establish a public policy exception to his at-will employment status, our analysis ends there. As an
       unclassified at-will employee, IDEM could terminate Brown for any reason that does not contravene public
       policy and because he failed to establish such public policy, Ind. Code § 4-15-2.2-24(b), the question of
       whether there was a causal link between his report and termination, IDEM’s stated reason for his
       termination, and any findings thereon, are irrelevant and do not harm Brown because he is not a
       whistleblower. Accordingly, we need not address Brown’s arguments on appeal pertaining to this issue.

       Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020                             Page 27 of 27
