Forrest Perkins v. Memorial Hospital of South Bend ( 2019 )

FILED
Apr 11 2019, 10:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Shaw Friedman Jeffery A. Johnson
Nelson Pichardo Daniel R. Appelget
LaPorte, Indiana Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Forrest Perkins, April 11, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-1340
v. Appeal from the St. Joseph
Superior Court
Memorial Hospital of South The Honorable Jenny Pitts Manier,
Bend, Judge
Appellee-Defendant Trial Court Cause No.
71D05-1609-CT-404
Altice , Judge.
Case Summary1
1
Oral argument was held at the McHale Performing Arts Center at Logansport High School on March 11,
2019. We thank the staff for our warm welcome and the students for their professionalism and attentiveness
throughout the argument. We also commend counsel on the quality of their written and oral advocacy.
Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 1 of 12
[1] Forrest Perkins was terminated from his employment as a police officer for
Memorial Hospital of South Bend (the Hospital) and thereafter filed a
complaint for wrongful termination. Although the Hospital identified the
reason for his termination as theft of food from the Hospital’s cafeteria, Perkins
contends that he was fired because, believing he had been subpoenaed, he
testified at a former co-worker’s unemployment benefits appeal hearing. The
Hospital filed a motion for summary judgment asserting that Perkins was an at-
will employee and that because he was never actually subpoenaed to testify at
the unemployment hearing, the public policy exception to the at-will
employment doctrine did not apply. The trial court granted summary judgment
in favor of the Hospital. Perkins appeals, arguing that summary judgment was
improperly granted.
[2] We affirm.
Facts & Procedural History
[3] Perkins, who had served as a Michigan State Trooper for over thirty years,
began working for the Hospital as a security officer on June 27, 2011. In 2014,
the Hospital’s security department became a full-fledged police department, at
which time Perkins became a police officer for the Hospital. Perkins never
entered into a written employment contract with the Hospital, and he was never
promised continued employment through any specific date.
[4] On May 12, 2015, Perkins left his shift at the Hospital early, but did not
elaborate as to why he needed to leave. Perkins then went to the
Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 2 of 12
unemployment benefits appeal hearing for Rick Bradley, a former co-worker,
believing he had been subpoenaed to testify. 2 Craig Whitfield, the Assistant
Chief of the Hospital’s police department, learned of the unemployment
hearing and knew that Perkins had left his shift early. Whitfield “put two and
two together” and then he and Dan Rutledge, the Chief of the Hospital’s police
department, drove to the unemployment hearing and confirmed that Perkins
was there upon seeing his vehicle in the parking lot. Appellant’s Appendix at 137.
[5] The Hospital did not appear for the unemployment hearing, choosing not to
contest Bradley’s request for unemployment benefits. The Administrative Law
Judge (ALJ) did not issue the requested subpoenas to Bradley’s three witnesses,
including Perkins, but nevertheless, all three witnesses testified before the ALJ.
Perkins maintains that his testimony concerned only the Hospital’s policies that
related to Bradley’s termination, with the apparent import being that there was
no just cause therefor. At some point after the hearing, Whitfield listened to a
recording of what transpired at the unemployment benefits appeal hearing to
find out the substance of Perkins’s testimony.
[6] On June 7, 2015, a cashier at the Hospital’s cafeteria reported to Whitfield that
when Perkins went through the line to pay for his food, Perkins did not mention
that he had gotten gravy, and thus, Perkins received gravy with his meal
without paying for it. Whitfield investigated the matter and determined that
2
Perkins was told he had been subpoenaed to testify at the hearing and believed he would receive his
subpoena at the hearing.
Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 3 of 12
Perkins had on two other occasions received a biscuit from the Hospital’s
cafeteria without paying for it. Perkins explained that he often had breakfast at
the Hospital’s cafeteria on weekends, each time ordering an omelet and often
times, but not always, sliding down the food line to get biscuits and gravy
before grabbing a bottle of water. He would then proceed to the cashier where
he may or may not have opened his container to show his food to the cashier.
Perkins maintains that the amounts charged often varied even if he purchased
the same thing. He would pay with his credit card and discard the receipt.
[7] Employee theft was a violation of the Hospital’s standard of conduct and was
grounds for termination. On June 18, 2015, Perkins was terminated for stealing
food from the Hospital’s cafeteria. Prior to his termination, Perkins had not
received any disciplinary complaints and had never been written up for
violations of the employee handbook.
[8] On September 2, 2016, Perkins filed a complaint against the Hospital for
wrongful termination. On January 16, 2018, the Hospital filed a motion for
summary judgment and designation of evidence, arguing that Perkins was an
employee at-will and that he was terminated for a valid, lawful reason. Perkins
filed a response in opposition thereto, claiming that under the facts of the case,
an exception to the at-will doctrine applied. The trial court held a hearing on
the summary judgment motion on March 8, 2018, and four days later, issued its
order granting summary judgment in favor of the Hospital. The trial court
accepted as true Perkins’s claim that he was terminated in retaliation for
testifying at a former co-worker’s unemployment benefits appeal hearing, but
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nonetheless determined that because Perkins did not have a duty to do so under
Indiana law, he did not establish that he was entitled to the protections of the
public policy exception to the employment-at-will doctrine.
Discussion & Decision
[9] We review summary judgment de novo, applying the same standard as the trial
court: “Drawing all reasonable inferences in favor of ... the non-moving parties,
summary judgment is appropriate ‘if the designated evidentiary matter shows
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756,
761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). “A fact is ‘material’ if its
resolution would affect the outcome of the case, and an issue is ‘genuine’ if a
trier of fact is required to resolve the parties’ differing accounts of the truth, or if
the undisputed material facts support conflicting reasonable inferences.” Id.(internal citations omitted).
[10] The initial burden is on the summary judgment movant to “demonstrate . . . the
absence of any genuine issue of fact as to a determinative issue,” at which point
the burden shifts to the non-movant to “come forward with contrary evidence”
showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). We will affirm upon any theory or basis supported
by the designated materials. Henderson v. Reid Hosp. & Healthcare Servs., 17
N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied. When a trial court grants
Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 5 of 12
summary judgment, we carefully scrutinize that determination to ensure that a
party was not improperly prevented from having his or her day in court. Id.[11] “Indiana adheres to the employment-at-will doctrine, under which employment
may be terminated by either party at will, with or without a reason. Harris v.
Brewer, 49 N.E.3d 632, 639 (Ind. Ct. App. 2015), trans. denied. The presumption
of at-will employment is strong, and we are disinclined to adopt broad and ill-
defined exceptions to the employment-at-will doctrine. Orr. v. Westminster
Village N., Inc., 689 N.E.2d 712, 717 (Ind. 1997); see also Morgan Drive Away, Inc.,
v. Brant, 489 N.E.2d 933, 934 (Ind. 1986) (“The employment at will doctrine
has steadfastly been recognized and enforced as the public policy of this State.
Revision or rejection of the doctrine is better left to the legislature.”) (internal
citation omitted).
[12] Indeed, our Supreme Court has recognized only three exceptions to the
employment-at-will doctrine: (1) where there is adequate independent
consideration that supports an employment contract; (2) where public policy
demands a deviation from the employment-at-will doctrine because (a) a clear
statutory expression of a right or duty is contravened or (b) an employer
discharges an employee for refusing to commit an illegal act for which the
employee would be personally liable; and (3) where the doctrine of promissory
estoppel applies. Baker v. Tremco Inc., 917 N.E.2d 650, 653-54 (Ind. 2009). If an
exception to the employment-at-will doctrine applies, an employer may be
liable for wrongful discharge for discharging an employee without just cause.
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Harris, 49 N.E.3d at 640. The wrongful discharge of an at-will employee gives
rise to an action in tort. Id.
[13] For purposes of summary judgment, we, like the trial court, will accept as true
Perkins’s claim that he was terminated for testifying at Bradley’s unemployment
hearing. Perkins and the Hospital both agree that the issue on appeal is
whether Perkins’s act of testifying at the unemployment hearing falls within the
public policy exception to the at-will employment doctrine. Perkins maintains
that his good faith belief that he had been subpoenaed to testify at the
unemployment hearing gave rise to a duty to testify. The Hospital argues that
Perkins did not exercise a statutory right, and he did not have a duty to testify at
Bradley’s unemployment hearing because he was never actually subpoenaed.
[14] In support of his position, Perkins directs us to Frampton v. Cent. Ind. Gas Co.,
297 N.E.2d 425 (Ind. 1973), wherein our Supreme Court first recognized the
public policy exception to the at-will doctrine. In Frampton, an employee
brought an action against her former employer for retaliatory discharge that she
alleged stemmed from her filing of a worker’s compensation claim. The trial
court dismissed the complaint for failure to state a claim upon which relief
could be granted. Notwithstanding that there were no cases holding that
retaliatory discharge for filing a worker’s compensation claim was actionable,
the court found that such was “a wrongful, unconscionable act and should be
actionable in a court of law.” Id. at 252. Drawing parallels with cases
recognizing retaliatory evictions in landlord-tenant law, the Court concluded
that the employee had stated a claim upon which relief could be granted. The
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court commented that “when an employee is discharged solely for exercising a
statutorily conferred right an exception to the general rule must be recognized.”
Id. at 428.
[15] Perkins asserts that “[i]t is not fanciful or folly to suggest that a similar
protection may be found to exist under the existing public policy exception for a
witness testifying at an unemployment hearing, when the same witness believes
he or she is required to do so in response to a lawful subpoena provided by
statute.” Appellant’s Brief at 16. In this vein, Perkins correctly notes that an
individual has a duty to respond to a subpoena issued by an ALJ for purposes
of an unemployment hearing. See Ind. Code § 22-4-19-8. 3 Perkins admits,
however, that although he believed he would receive a subpoena when he
appeared for the hearing, he never actually received a subpoena.
[16] We find Frampton inapposite to the case before us. The public policy exception
created in Frampton is “quite a limited exception” and was grounded in express
statutory language—i.e., that an employee has a right to file a worker’s
compensation claim. See Meyers v. Meyers, 861 N.E.2d 704, 707 (Ind. 2007).
Here, Perkins did not have a statutory right to testify. Further, we need not
3
Subsection (a) of this statute provides, in pertinent part:
When any person called as a witness by such subpoena, duly signed, and served upon the
witness by any duly authorized person or by the sheriff of the county of which such person is a
resident . . . shall fail to obey such subpoena to appear before . . . the administrative law judge. .
. or shall refuse to testify or to answer any questions . . . such failure or refusal shall be reported
to the attorney general for the state who shall thereupon institute proceedings . . . to compel
obedience of and by such witness.
Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 8 of 12
decide whether issuance of a subpoena would have created a duty for Perkins to
testify because Perkins admits that he was never issued a subpoena. 4 Absent the
exercise of a statutory right or duty, the public policy exception does not apply.
We decline Perkins’s request to extend the exception to cover the circumstances
of this case. 5
[17] We find this case to be similar to that addressed by our Supreme Court in Baker
v. Tremco Inc., 917 N.E.2d 650 (Ind. 2009). In Baker, an employee was
terminated because he refused to participate in his employer’s competitive
bidding practices given his mistaken belief that such practices were illegal. The
Court found that the employer’s competitive bidding practices were in fact
legal, and thus, the employee was lawfully terminated. The Baker Court held
that the employee’s mistaken belief about the illegality of the company’s
bidding practices was “not on par with the rights and obligations” that formed
the basis for the discharge complaint in Frampton, and thus, such did not
4
The reasons why the ALJ did not issue the subpoenas is not clear from the record. Nevertheless, we find
that such reasons are not relevant to our analysis.
5
The Meyers Court noted that in the thirty years since its creation, most cases have refused to extend the
Frampton exception. See, e.g., Lawson v. Haven Hubbard Homes, Inc., 551 N.E.2d 855 (Ind. Ct. App. 1990)
(holding that employee did not have a retaliatory discharge claim against former employer where employee
alleged she was fired for filing a claim for unemployment compensation); Campbell v. Eli Lilly & Co., 413
N.E.2d 1054 (Ind. Ct. App. 1980) (holding no claim for retaliatory discharge where employment terminated
for complaining about employer’s products and alleging improper activities by supervisors), trans. denied.
Cases where retaliatory discharge actions have been permitted generally involved plaintiffs allegedly
terminated in retaliation for refusing to violate a legal obligation that carried penal consequences. See, e.g.,
McGarrity v. Berlin Metals, 774 N.E.2d 71 (Ind. Ct. App. 2002) (holding retaliatory discharge claim could
stand where employee alleged he was fired for refusing to file a fraudulent tax return), trans. denied; Call v.
Scott Brass, Inc., 553 N.E.2d 1225 (Ind. Ct. App. 1990) (holding that employee could bring a retaliatory
discharge claim where she claimed her former employer dismissed her because she complied with a summons
for jury duty), trans. denied.
Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 9 of 12
warrant expansion of the public policy exception to the at-will employment
doctrine. Baker, 917 N.E.2d at 656.
[18] Like the employee’s honest belief in Baker, Perkins’s honest belief that he was
subpoenaed to testify at an unemployment hearing is “not on par with the rights
and obligations” that have been recognized as warranting an exception to the
at-will employment doctrine. Perkins has not provided us with any other
compelling reason to warrant judicial expansion of the public policy exception
to the at-will employment doctrine. Given the limited nature of the recognized
exceptions to the at-will employment doctrine, we must therefore conclude that
Perkins’s sincere yet mistaken belief that he had been subpoenaed does not fall
with the public policy exception. The trial court did not err in granting
summary judgment in favor of the Hospital.
[19] Judgment affirmed.
Tavitas, J., concurs.
Kirsch, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 10 of 12
.
IN THE
COURT OF APPEALS OF INDIANA
Forrest Perkins,
Appellant-Plaintiff,
Court of Appeals Case No.
v.
18A-CT-1340
Memorial Hospital of South
Bend,
Appellee-Defendant
Kirsch, Judge. dissenting.
[1] I respectfully dissent.
[2] Co-workers who testify at Unemployment Compensation hearings provide
essential services to claimants, employers and the claims process. Often, they
are the only unbiased witnesses, and their testimony is essential to the process,
to the parties and to correct decision-making by the Administrative Law Judges
who hear the claims. The importance of such witnesses to the claims process is
not related to, or dependent upon, whether a subpoena is issued to secure their
attendance.
Court of Appeals of Indiana | Opinion 18A-CT-1340 | April 11, 2019 Page 11 of 12
[3] Officer Forest Perkins was discharged by Memorial Hospital of South Bend.
The hospital’s stated reason for the termination—a failure to pay a small sum
for gravy in the hospital’s cafeteria--was found by the trial court to be
pretextual. The court determined that actual reason for the termination was
that the officer testified at a former co-employee’s Unemployment
Compensation Hearing.
[4] The majority states that Officer Perkins was told that he had been subpoenaed
and would receive the subpoena at the hearing. When the hospital did not
contest the co-employee’s claim, the Administrative Law Judge did not issue
the subpoena. Memorial Hospital of South Bend then discharged Officer
Perkins.
[5] Assuming the trial court was correct in finding that Memorial Hospital’s stated
reason for the termination was false, it has suffered no consequence from its
wrongful behavior. On the other hand, Officer Perkins testified truthfully and
suffered a very significant consequence: he was terminated from his
employment.
[6] Common sense tells us that this is not good law.
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