Tony v. Elkhart County ( 2006 )

FRIEDLANDER, Judge,

dissenting.

In this case, the majority creates a new cause of action in Indiana: the doctrine of constructive retaliatory discharge will support a claim of retaliatory discharge for a party who can show he or she was forced to resign as a result of exercising a statutorily conferred right. I believe this constitutes an unwarranted expansion and therefore respectfully dissent.

In its decision, the majority's analysis focuses to a large extent upon two cases: Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) and Cripe, Inc. v. Clark, 834 N.E.2d 731 (Ind.Ct.App.2005). In the former, our Supreme Court established, under the public policy exception, a narrow exception to the employment-at-will doctrine for situations in which the employer discharges the employee for refusing to commit an illegal act for which the employee would be personally liable. In the latter, we declined a request to expand the exception by recognizing the constructive discharge doctrine. The majority, however, embraces Judge Robb's dissenting views in Cripe as the framework for its analysis in the instant case.

This writer was in the majority in Cripe. Although we did not reject the doctrine of constructive discharge out of hand, it may be fairly said that we viewed it with skepticism, viz., "we are not convinced ... a constructive retaliatory discharge fits within the ambit of the narrowly-drawn exceptions to the employee-at-will doctrine. Rather ... were we to apply the doctrine of constructive discharge to demonstrate a retaliatory discharge, we would be overly extending that which was intended by the narrowly-defined exceptions." Cripe, Inc. v. Clark, 834 NE.2d at 735. My views on that issue have not changed.

I believe it is the Supreme Court's province alone to expand the parameters of the "tightly defined exception" it created in Frampton in such a way as to include the situation presented in the instant case. In the twenty-plus years that have passed since that decision was handed down, the Supreme Court has not seen fit to do so. Until it does, I continue to believe that the doctrine of constructive discharge has no application in a case premised upon the retaliatory discharge exception to the employment-at-will doctrine. I would affirm the trial court.