 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

KEVIN W. BETZ                                      MARSHA VOLK BUGALLA
JAMIE A. MADDOX                                    JULIA BLACKWELL GELINAS
Betz + Blevins                                     LUCY R. DOLLENS
Indianapolis, Indiana                              Frost Brown Todd LLC
                                                   Indianapolis, Indiana
                                                                              FILED
                                                                           Jan 19 2012, 9:36 am


                               IN THE                                                CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court

                     COURT OF APPEALS OF INDIANA

BETH E. MYERS,                                     )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
               vs.                                 )       No. 58A05-1104-CT-193
                                                   )
RISING SUN-OHIO COUNTY                             )
COMMUNITY SCHOOL                                   )
CORPORATION,                                       )
                                                   )
       Appellee-Defendant.                         )


                        APPEAL FROM THE OHIO CIRCUIT COURT
                          The Honorable James D. Humphrey, Judge
                               Cause No. 58C01-0908-CT-5



                                        January 19, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Midway through her first year as a special education teacher in the Rising Sun School

Corporation (“the School District”), Beth E. Myers was injured on the job and filed a

worker‟s compensation claim. She was absent from school intermittently in the winter

months due to the migraine headaches that resulted from her injury. The School District

compiled a list of conduct violations that Myers committed on the days that she was present

at school and during her absences, i.e., failure to leave adequate lesson plans for the

substitute teachers as required by her code of conduct. She was suspended with pay and

eventually was terminated following a hearing.

       Myers filed a complaint against the School District asserting that the School District

wrongfully discharged her in retaliation for her worker‟s compensation claim. She also

sought damages for intentional infliction of emotional distress. The School District filed a

motion for summary judgment, which the trial court granted.

       Myers now appeals. Finding that she has failed to establish retaliatory discharge as a

matter of law and has waived argument on her intentional infliction of emotional distress

claim, we affirm the trial court‟s entry of summary judgment.

                              Facts and Procedural History

       In August 2008, Myers began working for the School District as a special education

teacher pursuant to a regular teacher‟s contract. On December 18, 2008, she received a




                                             2
positive evaluation from her building principal, Gloria Holland.1 The next day, she hit her

head on a bookshelf at school and had to be treated at a nearby hospital. That same day, she

filed a worker‟s compensation claim, stating that her injury caused her to experience severe

migraines and post-concussion syndrome.

        After the holiday break, Myers missed eight days of school due to migraines. In

addition, the School District had five days of weather-related closings. On February 6, 2009,

after Myers had returned to work intermittently for thirteen days, Holland issued a suspension

letter to Myers, citing “Professional Conduct Concerns.” Appellant‟s App. at 204. The letter

listed sixteen allegations of Myers‟s inappropriate and unprofessional conduct:

        1.       On or about January 15, 2009[,] you physically carried a student across
                 the hallway by his ankles. The Board of School Trustees considers the
                 inappropriate and dangerous handling of a student to be relevant to the
                 school corporation‟s interest.

        2.       On or about January 2, 2009, during a meeting with fellow
                 professionals in trying to develop a behavior plan you gave no
                 suggestions and dismissed every idea as unworkable without being
                 tried. The Board of School Trustees considers the inability to work
                 with fellow professionals in developing behavior plans relevant to the
                 school corporation‟s interest.

        3.       On or about January 5, 2009, your report card grades were not on report
                 cards as instructed by Principal Holland. The Board of School Trustees
                 considers not following directions given by the building principal to be
                 relevant to the school corporation‟s interest.

        4.       On or about January 5, 2009, a teaching assistant was unable to locate
                 the grade book in order to put on grades. You told the teaching
                 assistant to give the students the same grades as they received the last

        1
         We disagree with Myers‟s characterization of the December 2008 evaluation as “excellent,” since it
expressed the administration‟s concerns regarding her truthfulness as well as her relationships with coworkers.


                                                      3
      grading period. The Board of School Trustees considers the lack of
      preparedness to be relevant to the school corporation‟s interest.

5.    On or about January 13, 2009, you misrepresented to a second grade
      teacher that Ms. Holland had approved a schedule change when in fact
      the change did not occur. The Board of School Trustees considers the
      misrepresenting of facts to be relevant to the school corporation‟s
      interest.

6.    On or about January 19, 2009, you did not follow the procedure
      outlined by Assistant Principal Huff in dealing with a student. Instead
      of following the procedure, you sent the student directly to Ms. Huff.
      The Board of School Trustees considers the failure to following [sic]
      directions from a building administrator to be relevant to the school
      corporation‟s interest.

7.    On or about January 19, 2009, you instructed the teaching assistants not
      to follow the procedures outlined by Assistant Principal Huff but to
      send students to Ms. Huff immediately. The Board of School Trustees
      considers you encouraging the teaching assistants to disobey
      instructions given by a building administrator to be relevant to the
      school corporation‟s interest.

8.    On or about January 20, 2009, you were absent from school and left no
      lesson plans. The Board of School Trustees considers the lack of
      lesson plans to be relevant to the school corporation‟s interest.

9.    On or about January 21, 2009, you were observed by the Assistant
      Director of Special Education. The Assistant Director noted that no
      academic skills were taught or practiced. The Board of School Trustees
      considers the lack of teaching academic skills to be relevant to the
      school corporation‟s interest.

10.   On or about January 22, 2009, you were absent from school and left no
      lesson plans. The Board of School Trustees considers the lack of
      lesson plans to be relevant to the school corporation‟s interest.

11.   On or about January 23, 2009, you were absent from school and left no
      lesson plans. The Board of School Trustees considers the lack of
      lesson plans to be relevant to the school corporation‟s interest.



                                     4
       12.       On or about January 26, 2009, you were absent and left partial lesson
                 plans that covered no more than two hours of the day. The Board of
                 School Trustees considers the lack of complete lesson plans to be
                 relevant to the school corporation‟s interest.

       13.       On or about January 26, 2009, it was reported that basic skills had not
                 been covered in your class since the beginning of the semester. The
                 Board of School Trustees considers the lack of teaching academic skills
                 to be relevant to the school corporation‟s interest.

       14.       On or about February 2, 2009, you were absent and left partial lesson
                 plans that covered no more than two hours of the day. The Board of
                 School Trustees considers the lack of complete lesson plans to be
                 relevant to the school corporation‟s interest.

       15.       On or about February 3, 2009, you were absent and left partial lesson
                 plans that covered no more than two hours of the day. The Board of
                 School Trustees considers the lack of complete lesson plans to be
                 relevant to the school corporation‟s interest.

       16.       On or about February 5, 2009, you were absent and left partial lesson
                 plans that covered no more than two hours of the day. The Board of
                 School Trustees considers the lack of complete lesson plans to be
                 relevant to the school corporation‟s interest.

Id. at 216-18.

       Upon receipt of this letter, Myers was suspended immediately with pay. On February

19, 2009, the superintendent sent Myers a termination letter that contained not only the

foregoing allegations of insubordination, neglect of duty, and incompetence, but also the

following allegations:

       17.       Since February 6, 2009, and through this date you have willfully
                 violated my direct order to “turn in your grade book immediately.”

       18.       Emergency lesson plans were not turned into the office as directed by
                 Ms. Holland on or about August 13, 2009 [sic].



                                                5
        19.       On or about October 21, 2008, in violation of the “Teacher Job
                  Description” you failed to provide a safe learning environment by
                  placing zip ties on the playground gates, which in effect prevented
                  egress from the playground.

        20.       Prior to December 2008, in violation of the “Teacher Job Description”
                  [you] failed to provide a safe learning environment by placing special
                  needs students on a motorcycle in order to take their picture.

Id. at 452-53.

        Myers requested a hearing before the Board of School Trustees (“the Board”). On

March 11 and March 13, 2009, the Board heard evidence from witnesses. Thereafter, the

School District terminated Myers‟s employment contract.

        On August 25, 2009, Myers filed a complaint against the School District, alleging

retaliatory discharge and both intentional and negligent infliction of emotional distress.2 In

her deposition, Myers did not dispute the conduct listed in her termination letter, but offered

justifications for it. On September 23, 2010, the School District filed a motion for summary

judgment, and Myers filed a response in opposition. The trial court granted the School

District‟s motion following a hearing. Myers now appeals.3 Additional facts will be

provided as necessary.




        2
            Myers eventually agreed to dismiss her claim for negligent infliction of emotional distress.

        3
           Myers has filed a motion for oral argument, which we deny in an order issued contemporaneously
with this decision.

                                                       6
                                        Discussion and Decision

        Myers challenges the trial court‟s decision to grant summary judgment in favor of the

School District.4 Summary judgment is appropriate where there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule

56(C). “A genuine issue of material fact exists where facts concerning an issue which would

dispose of the litigation are in dispute or where the undisputed facts are capable of supporting

conflicting inferences on such an issue.” Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669,

675 (Ind. Ct. App. 2007), trans. denied. We review the trial court‟s decision to grant or deny

summary judgment using the same standard as the trial court, in which all factual inferences

must be construed in favor of the non-moving party and all doubts as to the existence of a

material factual issue must be resolved against the moving party. Kroger Co. v. Plonski, 930

N.E.2d 1, 4-5 (Ind. 2010). If the moving party fails to make a prima facie showing of no

genuine issue of material fact and appropriateness of judgment as a matter of law, then

summary judgment is precluded regardless of whether the non-moving party designates facts

and evidence in response. Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 392

(Ind. Ct. App. 2010), trans. denied. However, once the moving party has carried its initial

burden, the non-moving party must come forward with sufficient evidence demonstrating the




        4
          We disagree with the School District‟s characterization of this appeal as an appeal from the action of
an administrative agency.




                                                       7
existence of genuine factual issues, and if she fails to do so, then summary judgment should

be granted. Mahan, 862 N.E.2d at 675-76.

                                         I. Retaliatory Discharge

          Myers asserts that genuine issues of material fact exist to preclude summary judgment

on her retaliatory discharge claim. An action for retaliatory discharge exists when an

employee is discharged for exercising a statutorily conferred right, such as filing a worker‟s

compensation claim. Purdy v. Wright Tree Serv., Inc., 835 N.E.2d 209, 212 (Ind. Ct. App.

2005), trans. denied (2006). In Frampton v. Central Indiana Gas Co., 260 Ind. 249, 251-53,

297 N.E.2d 425, 427-28 (1973), our supreme court held that an employee-at-will who was

discharged for filing a worker‟s compensation claim could file an action for retaliatory

discharge against her employer because the Worker‟s Compensation Act was designed for

the benefit of employees, and as such, its humane purpose would be undermined if

employees were subject to reprisal without remedy “solely” for exercising that statutory

right.5

          In Dale v. J.G. Bowers, Inc., 709 N.E.2d 366 (Ind. Ct. App. 1999), another panel of

this Court interpreted Frampton‟s use of the word “solely” to mean that “any and all reasons

for discharge must be unlawful in order to sustain a claim for retaliatory discharge.” Id. at


          5
          The School District argues that Frampton applies only to at-will employees and not to employees,
such as Myers, who work under employment contracts. In response, Myers cites as persuasive Coolidge v.
Riverdale Local School District, 797 N.E.2d 61, 65 (Ohio 2003), in which the Supreme Court of Ohio cited
and applied Frampton to a contracted teacher‟s claim for retaliatory discharge, stating that teachers should not
be afforded “less protection against wrongful discharges than the common law generally affords to at-will
employees.” Id. We agree with the Coolidge court and therefore apply Frampton‟s analysis in the present
appeal.


                                                       8
369. In reaching this conclusion, the Bowers court adopted the reasoning of the United

States District Court for the Southern District of Indiana in Watkins v. Sommer Metalcraft

Corp., 844 F. Supp. 1321 (S.D. Ind. 1994), holding that “the word „solely‟ as used in

Frampton and its progeny was used to mean without an independent lawful reason which

would justify the otherwise unlawful action.” Bowers, 709 N.E.2d at 369 (quoting Watkins,

844 F. Supp. at 1326) (emphasis added).

       The question of whether a retaliatory motive exists for discharging an employee is a

question for the trier of fact. Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1261-62 (Ind.

Ct. App. 2002). Thus, summary judgment is appropriate only “when the evidence is such

that no reasonable trier of fact could conclude that [the] discharge was caused by a prohibited

retaliation.” Id. at 1262 (citations and internal quotation marks omitted). To survive a

motion for summary judgment by the employer, the employee must show more than her filing

of a worker‟s compensation claim and the discharge itself; instead, she “must present

evidence that directly or indirectly implies the necessary inference of causation between the

filing of the worker‟s compensation claim and the termination,” i.e., proximity in time or

evidence that the employer‟s asserted lawful reason for discharge is a pretext. Id.

       As in a wrongful termination discrimination case, a plaintiff bringing a retaliatory

discharge claim must first present a prima facie case of discrimination. Id. At that point, the

burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the

discharge. Id. If the employer carries its burden, then the employee has the opportunity to

prove that the reason cited by the employer is a pretext. Id. She may establish pretext by


                                              9
showing that the reasons are (1) factually baseless; (2) not the actual motivation for her

discharge; or (3) insufficient to motivate the discharge. Id.

       Here, the School District provided Myers with a lengthy list of alleged violations,

including: failing to follow stated policies concerning lesson plans and grading; making

misrepresentations to her aides and to administration; and holding a nonverbal autistic

student upside-down by his ankles and carrying him across the hall. With respect to the

incident with the autistic student, Myers claims that holding him upside-down was a

legitimate therapeutic technique to calm him down and that the teacher‟s aide had used the

technique with impunity. To the extent she cites the aide‟s conduct as evidence of

discrimination by the School District, we note that the aide‟s job was to follow the classroom

teacher‟s instructions and that the aide never carried a student across the hall while holding

him upside-down. Thus, Myers and the aide were not “identical … in all relevant aspects.”

Sellars v. City of Gary, 453 F.3d 848, 850 (7th Cir. 2006) (citations and quotation marks

omitted).

       Moreover, even assuming for argument‟s sake that Myers had established

discrimination, the list she received from the School District articulates legitimate

nondiscriminatory reasons for her discharge, i.e., endangering a student/students, making

misrepresentations    to   administration   and   instructing   others   to   make    similar

misrepresentations, and failing to provide adequate lesson plans during eight days of absence,

which led to eight days of essentially structureless class time. As such, we conclude that the




                                             10
School District cited legitimate nondiscriminatory reasons for discharging Myers sufficient to

shift to her the burden of proving pretext.

       In making her pretext claim, Myers does not refute the factual basis for the allegations

against her. Instead, she cites the close proximity between the filing of her worker‟s

compensation claim and her discharge, as well as the sheer number of alleged violations that

she accumulated in a short amount of time as evidence that the articulated reasons were not

the actual motivation for her discharge. She also notes that the lengthy list of violations came

shortly after her “excellent” evaluation. She was injured on December 19, 2008, and filed

her worker‟s compensation claim on that date. After the holiday break, she returned to

school. However, between five snow days and eight absences due to migraines, she worked

only thirteen days between the date of her claim and February 6, 2009, the date that she

received notice of her suspension. Seventeen of her twenty alleged violations occurred

during that thirteen-day period. In this vein, she claims that she could not possibly have

engaged in so many violations in such a short period. We disagree and note that seven of the

violations involve omissions relating to the days when she was not at work, namely, in failing

to leave complete, or sometimes any, lesson plans. Three of her alleged violations involve

failures relating to grade reporting and/or grade book insufficiencies, which again, were

actions not limited to actual days spent at school. Also, to the extent that she cites the three

allegations that predate her injury and December 18, 2008 evaluation, we note that the

superintendent only learned of the incidents involving the motorcycle and the playground

gate after Myers‟s suspension. Moreover, Myers admitted (and the security video confirmed)


                                              11
that she carried the nonverbal autistic student upside-down by his ankles across the hall.

Although she advanced an argument that such conduct was recognized as a calming

technique or “sensory diet,” the occupational therapist in charge of training the special

education teachers and developing specialized programs for the students stated that she

herself would never engage in such an activity and that she never trained Myers to engage in

it either. Appellant‟s App. at 242-43. Finally, we note that even though this dangerous

activity would be sufficient, standing alone, to justify disciplinary action, the School District

emphasized that Myers was terminated because of her accumulation of numerous violations

of the code of conduct.

       In sum, Myers has failed to demonstrate that the allegations were not factually-based,

were not the actual reason for her discharge, and were insufficient to motivate her discharge.

As such, we conclude that she has failed to establish pretext as a matter of law.

Consequently, summary judgment was appropriate on her retaliatory discharge claim.

                        II. Intentional Infliction of Emotional Distress

       Myers also contends that the trial court erred in granting summary judgment in favor

of the School District on her claim for intentional infliction of emotional distress. However,

in her appellant‟s brief, she fails to present any argument on this issue. Instead, she addresses

this claim for the first time in her reply brief. As such, she has waived the issue for review

per Indiana Appellate Rule 46(A)(8), which states that the argument section of the

appellant‟s brief must contain the appellant‟s contentions on each issue, supported by cogent

reasoning. See Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply


                                               12
brief.”). See also Ryan v. Brown, 827 N.E.2d 112, 118 (Ind. Ct. App. 2005) (finding that

claim was waived for review when raised for first time in reply brief).

       Affirmed.

MAY, J., and BROWN, J., concur.




                                            13
