Daniel Harris v. Donald brewer, Donald Crockett, and Thomas Lamb, Orange County Commissioners as governing body of the Orange County Highway Dept.

Dec 31 2015, 9:42 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel L. Brown Douglas A. Hoffman
Salem, Indiana Jeremy M. Dilts
Carson Boxberger
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Harris, December 31, 2015
Appellant-Plaintiff, Court of Appeals Case No.
59A05-1501-CT-37
v. Appeal from the Orange Circuit
Court
Donald Brewer, Donald Trial Court Cause No.
59C01-1401-CT-4
Crockett, and Thomas Lamb,
Orange County Commissioners The Honorable John T. Evans,
Special Judge
as governing body of the Orange
County Highway Department,
Appellees-Defendants.
Pyle, Judge.
Statement of the Case
[1] Appellant/Plaintiff, Daniel Harris (Harris), appeals the trial court’s grant of
summary judgment in favor of Donald Brewer, Donald Crockett, and Thomas
Lamb, Orange County Commissioners, as governing body of the Orange
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 1 of 26
County Highway Department (“Highway Department”) (collectively, “Orange
County”), on Harris’s claims of wrongful termination and defamation. Harris
was terminated from his employment with the Highway Department as a result
of his alleged consumption of alcohol prior to operating a Highway Department
vehicle. He subsequently filed wrongful termination and defamation claims,
amongst others, against Orange County. Orange County filed a motion for
summary judgment on the claims, and the trial court granted the motion.
[2] On appeal, Harris argues that the trial court erred in granting summary
judgment on both claims. With respect to his wrongful termination claim, he
asserts that the trial court should have ruled that he was not an at-will employee
because it should have interpreted the Orange County Highway Department’s
Handbook of Personnel Policy (“the Handbook”) as a valid unilateral
employment contract stipulating that Harris’s employment could only be
terminated for just cause. Alternatively, Harris argues that even if the
Handbook did not constitute a valid employment contract, an exception to
Indiana’s presumption of employment-at-will applied to him. With respect to
his defamation claim, Harris asserts that the trial court erred in granting
summary judgment because there were still genuine issues of material fact
remaining for the factfinder to resolve.
[3] On cross-appeal, Orange County argues that the trial court erred in denying its
motion to strike portions of the evidence Harris designated in his response to
Orange County’s motion for summary judgment.
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 2 of 26
[4] We affirm the trial court’s grant of summary judgment on Harris’s wrongful
termination claim because: (1) the Handbook did not constitute a valid
unilateral contract; and (2) an exception to the employment-at-will doctrine did
not apply to Harris. We also affirm the trial court’s grant of summary judgment
on Harris’s defamation claim because Orange County had a qualified privilege
to deliver Harris’s termination letter and there were no genuine issues of
material fact. As we also conclude that the evidence Orange County challenges
in its cross-appeal is not dispositive, we need not address whether the trial court
erred in denying Orange County’s motion to strike evidence.
[5] We affirm.
Issues
APPEAL
Whether the trial court erred in granting summary judgment in
favor of Orange County on Harris’s wrongful termination and
defamation claims.
CROSS-APPEAL
Whether the trial court erred when it denied Orange County’s
motion to strike portions of Harris’s designated evidence.
Facts
[6] In 2013, Harris was employed by the Highway Department. Pursuant to his
employment, he was assigned a Highway Department truck that he was
allowed to take home after work. On August 7, 2013, an anonymous caller
reported to the Indiana State Police that Harris was “driving a county highway
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 3 of 26
truck with a female passenger while intoxicated and was yelling out the
window.” (App. 68). Indiana State Trooper Michael Allen (“Trooper Allen”)
and another officer drove to Harris’s residence to investigate. Trooper Allen
later reported:
Deputy Shipman and I drove up to his residence . . . and located
a 2005 White Chevy truck with Municipal Plate 68133 sitting in
the driveway. I felt the hood of the truck[,] and it was still hot.
Mr. Harris exited his residence and asked what was going on. I
explained to him that we had a complaint of him driving the
County truck by the Sprint gas station while intoxicated and
yelling out the window. Mr. Harris stated that he ha[d] not been
to town but was in Mitchell earlier after work. He stated he
drove the truck around 9:00 [p.m.] to the backside of his
residence but denied being on the roadway. As I spoke to Mr.
Harris I could smell [an] odor of an alcoholic beverage coming
from his breath[,] and his eyes were very glossy. I did not
observe any other signs of impairment. I asked him how much
he had to drink[,] and he stated that he had been drinking since
he got off work. I did give Mr. Harris a portable breath test[,]
which tested positive for alcohol (.05)[.] I then told him I was
going back to the Sprint gas station to pull the video of the time
frame given to see if he was in fact there. He then stated that he
forgot but he did go to the gas station to get cigarettes in the
Company Vehicle. Mr. Harris then stated he had only [o]ne beer
contrary to what he stated earlier. No charges were filed [] due
to my observation that Mr. Harris was not intoxicated at the time
of my contact with him. I did look inside the vehicle and there
[were] no open containers[.]
(App. 68). The next day, Orange County sent Harris a letter stating that his
employment with the Highway Department was terminated, effective
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 4 of 26
immediately, due to Harris’s “admission” to the troopers that he had driven a
county highway truck “after drinking alcohol.” (App. 69).
[7] On January 9, 2014, Harris filed a complaint against Orange County seeking
declaratory and injunctive relief. He claimed that Orange County had violated
Indiana’s open door law because it had not held a public meeting when it
discussed terminating his employment. On March 21, 2014, Harris filed an
amended complaint adding additional wrongful termination claims, as well as a
defamation claim. With respect to the defamation claim, he argued that the
allegations in his termination letter were defamatory and that Orange County
had published the allegations because the letter was a public record. As a result
of this asserted publication, Harris claimed that the allegations had damaged his
reputation in the community and his ability to obtain further employment.
[8] On August 27, 2014, Orange County filed a motion for summary judgment. It
argued that there were no genuine issues of material fact left to determine
because: (1) Harris’s open door claim had been untimely; (2) Harris had been
an at-will employee at the time of his termination and, therefore, his
employment had not been wrongfully terminated; and (3) it had not defamed
Harris because the allegations in Harris’s termination letter were true; he had
been the only recipient of the letter; and Orange County had possessed a
qualified privilege to write and deliver the letter, which was a defense to
defamation.
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 5 of 26
[9] Harris filed a response to the motion for summary judgment, arguing that the
trial court should deny the motion because there were still genuine issues of
material fact left to decide, including whether: (1) Harris had operated the
county truck while, or after, drinking; (2) the Handbook constituted a valid
unilateral contract providing that Harris’s employment could only be
terminated for just cause; and (3) one of the exceptions to the employment-at-
will doctrine applied to Harris if the Handbook did not constitute a contract.
Harris tendered designated evidence with his response, including an affidavit
containing his version of the events that had occurred on the night of August 7,
2013; a political endorsement titled “Political Endorsement—Indiana
Republican State Committee” (“political endorsement”); an explanation of the
political endorsement, which presumably accompanied it; and the Handbook.1
(App. 71).
[10] In Harris’s affidavit, he recounted his version of the events that had occurred on
the night of August 7, 2013. He averred that he had returned home from work
that night after running errands. He said that, for the next hour, he had worked
on a plumbing problem at his house. Then, at 7:00 p.m., he had gone with his
wife to a Sprint Station in Orleans. He said that when he pulled into the Sprint
Station, a black SUV had pulled in front of him and had almost hit him. As a
result, Harris had blown his horn and yelled at the SUV. Thereafter, according
1
Harris’s affidavit did not establish any context or foundation for the political endorsement or its
explanation.
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 6 of 26
to Harris, his wife had purchased cigarettes at the store, and they had returned
home around 8:00 p.m. Then, at 9:00 p.m., he had moved the county truck to
the back of his residence. He averred that he had not at any point driven the
county truck on the roadway after consuming alcoholic beverages. He also
averred that when he returned to the Highway Department to take possession
of his personal tools and toolbox, several employees commented to him that
they had heard rumors and that he had “gotten the short end of the stick.”
(App. 47).
[11] The political endorsement that Harris designated was a form from the Indiana
Republican State Committee documenting Harris’s political party, the fact that
he had voted in the previous primary election, and the county in which he had
voted. It also contained Harris’s contact information and was signed by the
Republican State Committee’s Precinct Commissioner, Vice Commissioner,
County Chair, and Vice Chair. The form also explicitly provided that: “This is
not an application for employment” and “[t]his completed card does not
guarantee employment.” (App. 71).
[12] The explanatory document that, presumably, accompanied Harris’s political
endorsement explained that:
Political endorsement is required for most non-merit government
employment and appointments. The elected office-holder who is
responsible for filling such positions is dependent upon political
party organization for campaign assistance. For this reason, the
office-holder asks party officials to endorse all persons who are
hired for non-merit jobs. Political endorsement will be valid for
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 7 of 26
either one calendar year or the length of time the applicant
remains in continuous state employment.
If you are not now registered to vote, please do so in the county
of your residence before requesting political endorsement. You
can obtain the name and address of the required signatories by
contacting your Republican County Chairman. Start the
endorsement procedure by first contacting your precinct vice-
committeeman and secure all endorsements 1 through 6. Return
the completed card to the state agency or county chairman who
furnished you the card. They will forward the card to State
Headquarters for the State Chairman’s endorsement.
(App. 72).
[13] On December 8, 2014, Orange County filed a reply, in which it included a
motion to strike the political endorsement and a portion of Harris’s affidavit.
Orange County argued that Harris had not authenticated the political
endorsement and that it was inadmissible hearsay. In addition, Orange County
asserted that Harris’s affidavit contained inadmissible hearsay statements such
as the statements from Harris’s co-workers regarding his termination and
Harris’s own statement that he did not consume any alcohol before driving the
county truck. Orange County argued that Harris’s statement was inadmissible
because it contradicted his prior admission to Trooper Allen that he had
consumed alcohol and because contradictory testimony by a non-movant may
not be used to defeat a summary judgment motion where the only issue of fact
raised by the affidavit is the credibility of the affiant.
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 8 of 26
[14] On January 5, 2015, the trial court denied the motion to strike and entered a
general grant of summary judgment in Orange County’s favor on all three
claims. Harris now appeals.
Decision
[15] On appeal, Harris challenges the trial court’s grant of summary judgment to
Orange County on his wrongful termination and defamation claims but not his
open door claim. With respect to his wrongful termination claim, he argues
that the Handbook was a valid unilateral contract such that Orange County
could only terminate his employment for just cause. Alternatively, he asserts
that even if, as Orange County claimed, the Handbook was not a contract and
he was an at-will employee at the time of his termination, an exception to the
employment-at-will doctrine applied to him. Finally, Harris argues that the
trial court erred in granting summary judgment on his defamation claim
because there were still genuine issues of material fact left for the factfinder to
determine.
[16] On cross-appeal, Orange County argues that the trial court erred when it denied
Orange County’s motion to strike a portion of Harris’s designated evidence.
Specifically, Orange County asserts that Harris’s statement in his affidavit that
“[w]hen I returned to the Orange County Highway Department to take
possession of my personal tools and toolbox, several employees commented to
me that they had heard rumors and that I had ‘gotten the short end of the
stick’” was inadmissible hearsay that the trial court should have struck. (App.
47).
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 9 of 26
[17] When reviewing a trial court’s grant of summary judgment, we apply the same
standard as the trial court. Carroll Creek Dev. Co., Inc. v. Town of Huntertown, 9
N.E.3d 702, 708 (Ind. Ct. App. 2014). Summary judgment is appropriate only
where the designated evidence 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.” Id. (citing Ind. Trial Rule 56(C)). The movant “bears the initial burden
of making a prima facie showing that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville Sheet
Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). Summary judgment is
improper if the movant fails to carry this burden. Id. However, if the movant
succeeds, then the nonmoving party must come forward with evidence
establishing the existence of a genuine issue of material fact. Id. We view the
facts in the light most favorable to the non-movant. Orr v. Westminster Village
North, Inc., 689 N.E.2d 712, 717 (Ind. 1997). Where, as here, the defendant is
the moving party, the defendant must demonstrate that the undisputed facts
negate at least one element of the plaintiff’s cause of action or that the
defendant has a factually unchallenged affirmative defense that bars the
plaintiff’s claim. Bradley v. Hall, 720 N.E.2d 747, 750 (Ind. Ct. App. 1999).
1. Wrongful Termination
[18] On appeal, Harris argues that the trial court erred when it granted summary
judgment on his wrongful termination claim. Harris’s wrongful termination
claim depends, in part, on whether he qualified as an at-will employee. Indiana
follows the doctrine of employment-at-will, under which employment may be
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 10 of 26
terminated by either party at will, with or without a reason. Ogden v. Robertson,
962 N.E.2d 134, 145 (Ind. Ct. App. 2012), trans. denied. There is a strong
presumption that employment in Indiana is at-will. Id. However, if the parties
choose to include a clear job security provision in an employment contract, the
presumption that the employment is at-will may be rebutted. Wynkoop v. Town
of Cedar Lake, 970 N.E.2d 230, 235 (Ind. Ct. App. 2012), trans. denied. In such a
case, the employer generally may not terminate the employment relationship
before the end of the term except for just cause or by mutual agreement. Orr,
689 N.E.2d at 717. The wrongful discharge of a contract-bound employee gives
rise to a cause of action for breach of contract. Remington Freight Lines, Inc. v.
Larkey, 644 N.E.2d 931, 940 (Ind. Ct. App. 1994), as clarified on denial of reh’g.
To prevail on a wrongful discharge claim, a contract-bound employee must
prove that he or she had a contract of employment for a specific duration that
was improperly terminated. Ewing v. Bd. of Trustees of Pulaski Mem’l Hosp., 486
N.E.2d 1094, 1098 (Ind. Ct. App. 1985), reh’g denied, trans. denied.
[19] If an employment contract for an ascertainable term of employment does not
exist, an exception to the employment-at-will doctrine may apply. Our
supreme court has recognized three exceptions to the employment-at-will
doctrine: (1) if an employee establishes that “adequate independent
consideration” supports the employment contract; (2) if a clear statutory
expression of a right or duty is contravened; and (3) if the doctrine of
promissory estoppel applies. Orr, 689 N.E.2d at 718. When an exception to the
employment-at-will doctrine applies, an employer may be liable for wrongful
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 11 of 26
discharge for discharging an employee without just cause. See McGarrity v.
Berlin Metals, Inc., 774 N.E.2d 71, 76 (Ind. Ct. App. 2002) (stating that an at-will
employee “allegedly fired for refusing to commit an unlawful act for which he
would be personally liable may bring a cause of action for wrongful discharge”);
Steele v. McDonald’s Corp., 686 N.E.2d 137, 141 (Ind. Ct. App. 1997) (“[W]here
an employee gives independent consideration for an employment contract . . .
the employer may terminate the employee only for good cause. . . . [An]
employee states a cause of action for wrongful or retaliatory discharge where he
is discharged for exercising a statutorily conferred right or duty.”), reh’g denied,
trans. denied. However, unlike the wrongful discharge of a contract-bound
employee, the wrongful discharge of an at-will employee gives rise to an action
in tort. Remington, 644 N.E.2d at 940.
[20] Here, Harris did not have an employment contract for a definite or
ascertainable term. However, he argues that the Handbook, disseminated by
Orange County, contained job security promises from Orange County such that
it constituted a unilateral employment contract requiring Orange County to
have just cause to terminate his employment. Alternatively, he argues that one
of the exceptions to the employment-at-will doctrine applied to him.
A. The Handbook
[21] Harris’s first argument, that the Handbook constituted a valid unilateral
contract, is based on the Illinois Supreme Court’s opinion in Duldulao v. Saint
Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (Ill. 1987). There, the Illinois
Supreme Court held that an employee handbook may constitute a unilateral
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 12 of 26
employment contract binding an employer if three conditions are met: (1) the
language of the employee handbook contains a promise clear enough that an
employee would reasonably believe that an offer had been made; (2) the
handbook is disseminated to the employee in such a manner that the employee
is aware of its contents and reasonably believes it to be an offer; and (3) the
employee accepts the offer by commencing or continuing work after learning of
the terms of the handbook. Duldulao, 505 N.E.2d at 318. Although Indiana
courts have addressed Duldulao in Orr and several subsequent cases, we have
never adopted the Duldulao factors or otherwise held that an employee
handbook may constitute a unilateral employment contract. See, e.g., Orr, 689
N.E.2d at 721; McCalment v. Eli Lilly & Co., 860 N.E.2d 884, 893 (Ind. Ct. App.
2007). Nevertheless, Harris argues that the Handbook here differs from the
employee handbooks we have considered to date, such that we should re-
consider Duldulao and find the Handbook to be a binding unilateral contract.
[22] The Handbook here contains phrases that implicate both employment for an
ascertainable period of time and “at-will” employment, which are seemingly
contradictory. Specifically, one of the Handbook’s provisions stipulates that
failure of any employee to adhere to the Highway Department’s Code of Ethics
will result in “immediate dismissal.” (App. 60). In its “DISCIPLINE” section,
the Handbook then provides that “[a]ll employees are ‘at will’” and that “[a]n
employee is subject to discipline for just cause.” (App. 61). Finally, the
“Termination” section of the Handbook contains two subsections—
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 13 of 26
“Mandatory Dismissal” and “Discretionary Dismissal.” (App. 62). The
“Mandatory Dismissal” subsection provides that:
An employee shall be discharged immediately without notice for
misconduct of corporate policies or procedures, violations of
state or federal laws and including, but not limited to the
following:
* * *
7. Use, possession, or consumption, of alcoholic
beverages on the premises of the county . . .
(App. 62) (emphasis added). Then, the “Discretionary Dismissal” subsection
provides that:
All county employees, other than those covered by merit board,
serve at the will of the elected official for whom they work, and
nothing in this personnel policy is intended, nor shall it be construed, as
altering this “at will” employment status. Employees may be
terminated at the pleasure and discretion of the elected official for
whom they work, and no reason for termination shall be required,
provided however, that no employee may be terminated for a
legally impermissible reason.
(App. 62-63) (emphasis added). Harris argues that, because the Handbook says
that employees will be subject to discipline for “just cause,” the Handbook
establishes that employment with the Highway Department is not at-will.
[23] In Orr, our supreme court declined to hold that an employee handbook may
constitute a unilateral contract or to adopt the Duldulao factors—although it did
not foreclose the possibility of doing either in a later case—based on the facts of
the case. Orr, 689 N.E.2d. at 721. The handbook at issue there did not contain
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 14 of 26
a statement that employees would be discharged only for just or good cause. Id.
Instead, it expressly stated that: (1) while “in most cases, disciplinary action
will begin with an oral warning . . . dismissal may occur immediately;” (2) the
list of violations was “not intended to be all inclusive;” and (3) major violations
could “result in immediate discharge without warning.” Id. In addition, the
front of the handbook contained a disclaimer stating that the handbook was not
a contract and that its terms could be changed at any time. Id. Based on these
factors, the Orr Court reasoned that the language of the handbook did not
contain a promise of employment security clear enough that an employee
would reasonably believe that an offer had been made, as required by the first
step under Duldulao. Id. As a result, it held that it need not decide whether to
adopt Duldulao because the handbook at issue would not qualify as an
employment contract, even under Duldulao. Id.
[24] Thereafter, in McCalment, we addressed whether an employee handbook that
had internally contradictory provisions constituted a valid unilateral contract.
There, Eli Lilly & Co. (“Lilly”) terminated McCalment’s employment without
following the grievance procedures outlined in its employee handbook.
McCalment, 860 N.E.2d at 888. As a result, McCalment filed a breach of
contract claim arguing that Lilly’s employee handbook was a valid contract that
bound Lilly to the termination procedures it had specified. Id. at 891. In
support of this argument, McCalment noted that the handbook “devot[ed]
[forty] pages to explaining [sic] how Lilly [would] treat its employees fairly
based on merit” and only spent “two paragraphs . . . contradictorily and
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 15 of 26
ambiguously say[ing] [that] the Handbook ‘[was] not a contact of employment’
and [that] either Lilly or the employee [could] end the relationship when they
want[ed].” Id. at 893. On appeal of the trial court’s denial of McCalment’s
breach of contract claim, we held that in light of “Orr’s reaffirming of the
validity of the [at-will] doctrine and the disclaimer [in the handbook],” we
could not say that the handbook contained a promise clear enough that an
employee would reasonably believe that Lilly had made an offer of employment
security. Id. In other words, even though Lilly’s handbook focused on the
measures it would take to treat its employees fairly, the contradictory provisions
indicated that Lilly had not made a clear promise of employment security.
[25] After McCalment, we again considered the issue of whether an employee
manual might constitute a valid contract in Wynkoop. The employee handbook
at issue there contained a provision stating that, “In the event that disciplinary
action must be taken against an employee, it will be for just cause.” Wynkoop,
970 N.E.2d at 236. Wynkoop argued that this provision was a promise from
his employer, the Town of Cedar Lake, that it would only terminate his
employment for “just cause.” Id. We disagreed, noting that the quoted
language did not “explicitly assure disciplinary action ‘only’ for just cause” and
that other portions of the handbook emphasized the at-will nature of the
employment. Id. Based on our review of the employee handbook as a whole,
including the provisions regarding at-will employment, we concluded that the
Town of Cedar Lake had not made a clear promise that employees would be
terminated only for just cause. Id.
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 16 of 26
[26] In light of these precedents, we decline Harris’s invitation to adopt Duldulao
because, even if we were to adopt Duldulao, the Handbook would not constitute
a valid unilateral contract as it does not contain a clear promise of secure
employment. The overwhelming emphasis of the Handbook’s provisions is that
employment with the Highway Department is “at-will” and that dismissal may
occur “immediately.” (App. 61-62). Even though, as Harris notes, the
Handbook also states that an employee is subject to discipline for “just case,”
we find it significant that, as in Wynkoop, the provision does not explicitly state
that discipline will occur only for just cause. See Wynkoop, 970 N.E.2d at 236.
In addition, Harris attempts to distinguish the Handbook from past precedent
by noting that it does not contain a disclaimer, as the Handbook in Orr did, nor
a definition of “at-will” employment. Regardless of those factors, however, the
Handbook’s stipulations that employment is “at-will” and may be terminated
“immediately” indicate that it did not make a clear promise that Harris’s
employment would be terminated only for just cause.
B. Exceptions to Employment-At-Will
[27] Alternatively, Harris argues that, even if the Handbook did not constitute a
valid unilateral contract, an exception to the presumption of at-will
employment applied to him. As we stated above, our supreme court has
recognized three exceptions to the employment-at-will doctrine: (1) if an
employee establishes that “adequate independent consideration” supports the
employment contract; (2) if a clear statutory expression of a right or duty is
contravened; and (3) if the doctrine of promissory estoppel applies. Orr, 689
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 17 of 26
N.E.2d at 718. Harris argues that the “independent consideration” and
“promissory estoppel” exceptions apply to him. Alternatively, he argues that
his employment should be excluded from the employment-at-will doctrine as a
matter of public policy.
[28] Harris’s first claim is that there was “independent consideration” supporting his
employment because he provided his own tools to perform the work he did for
the Highway Department and because he designated evidence that he had
obtained a political endorsement for his employment. We have held that if an
employee provides independent consideration for an employment contract,
then the employer may terminate that employee only for good cause without
incurring liability for its actions. Swan v. TRW, Inc., 634 N.E.2d 794, 797 (Ind.
Ct. App. 1994), trans. denied. Indiana courts have identified different scenarios
in which an employee’s act or forbearance might provide adequate independent
consideration. Wior v. Anchor Industries, Inc., 669 N.E.2d 172, 175 (Ind. 1996),
reh’g denied. For example, courts have held that giving up a competing business,
conveying a valuable coal lease in exchange for employment, and releasing an
employer from liability on a personal injury claim could all constitute adequate
independent consideration. Id. (citing Ohio Table Pad Co. of Ind. v. Hogan, 424
N.E.2d 144, 146 (Ind. Ct. App. 1981); Mt. Pleasant Coal Co. v. Watts, 151 N.E.7
(Ind. Ct. App. 1926); and Toni v. Kingan & Co., 15 N.E.2d 80 (Ind. 1938)). In
addition, we have held that adequate independent consideration existed when
an employee had a former job with assured permanency and accepted a new
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 18 of 26
position only after receiving assurances guaranteeing similar permanency. Peru
School Corp. v. Grant, 969 N.E.2d 125, 132 (Ind. Ct. App. 2012), trans. denied.
[29] In contrast, “‘simply surrendering another job or moving to another location to
accept a new position which the employee [has] sought, standing alone, does
not constitute independent consideration.’” Id. (quoting Orr, 689 N.E.2d at
718). The reason for this rule is that:
in moving and/or giving up her prior job, the employee is merely
placing herself in a position to accept new employment. There is
no independent detriment to the employee because she would
have had to do the same things in order to accept the job on any
basis, and there is no independent benefit bestowed upon the
employer.
Ohio Table Pad Co. of Ind., 424 N.E.2d at 146. In general, “[i]t is only where a
different and substantial detriment is incurred” that “separate consideration has
been found to exist.” Whiteco Industries, Inc. v. Kopani, 514 N.E.2d 840, 844
(Ind. Ct. App. 1987), trans. denied. Further, we have declined to find
independent consideration to support an employment contract requiring just
cause for termination where there is no evidence that the consideration was
offered in exchange for permanent employment. See Swan, 634 N.E.2d at 797
(finding that, even though employee had been influenced to accept a job based
on retirement, insurance, and health benefits, there was no evidence that the
employer offered permanent employment terminable only for just cause); see
Orem v. Ivy Tech State College, 711 N.E.2d 864, 871 (Ind. Ct. App. 1999) (finding
that employee bargained for specific position rather than for permanent
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 19 of 26
employment where the contract did not contain a tenure provision), reh’g denied,
trans. denied.
[30] We conclude that neither Harris’s use of his own tools in his employment nor
his political endorsement were adequate independent consideration for his
employment because he did not designate any evidence showing that he offered
either in exchange for a promise of permanent employment. See Swan, 634
N.E.2d at 797; Orem, 711 N.E.2d at 871. To the contrary, the political
endorsement explicitly states, “This completed card does not guarantee
employment.” (App. 71). Likewise, Harris did not provide any explanation for
the reason he provided his own tools. Accordingly, we conclude that the trial
court did not err in finding that he did not provide independent consideration
for his employment. Thus, this exception to the employment-at-will doctrine
does not apply to Harris.
[31] Alternatively, Harris argues that the promissory estoppel exception to the
employment-at-will doctrine applied to his employment. Our supreme court
has recognized that an employee may invoke the doctrine of promissory
estoppel by “pleading the doctrine with particularity, demonstrating that the
employer made a promise to the employee, the employee relied on the promise
to his detriment, and the promise otherwise fits within the Restatement test for
promissory estoppel.” Peru School Corp., 969 N.E.2d at 133-34 (citing Baker v.
Tremco, Inc., 917 N.E.2d 650, 654 (Ind. 2009)). As noted in Peru School Corp.,
the Restatement provides:
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 20 of 26
A promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee or a
third person and which does induce such action or forbearance is
binding if injustice can be avoided only by enforcement. The
remedy granted for breach may be limited as justice requires.
Id. at 133 (citing Restatement (Second) of Contracts § 90(1) (1981)).
[32] Essentially, Harris’s promissory estoppel argument appears to have four
interrelated components: (1) the Handbook promised that employees would be
discharged immediately without notice for misconduct only if they used,
possessed, or consumed alcoholic beverages on the county’s premises; (2) his
truck did not fit within the definition of the county’s premises; (3) the County,
therefore, violated its promise; and (4) the County thus also violated the
Handbook’s promise that its contents would be “actively and consistently
enforced.” (App. 50).
[33] Harris’s arguments lack merit because they are based on several
misinterpretations. With respect to the first component of his argument, we
find that the Handbook did not promise that employees would be discharged
for misconduct only if they committed the misconduct on the premises of the
county. Instead, the provision that Harris cites explicitly stated that employees
would be discharged immediately without notice for misconduct “including,
but not limited to” the list of misconduct included in the Handbook, which
included misconduct occurring on the premises of the county. (App. 62).
Therefore, it is irrelevant whether Harris’s truck qualified as premises of the
county as the Handbook did not limit the Highway Department’s ability to
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 21 of 26
terminate its employees’ employment by geographic location. Further, since
the Department did not make any promises that it would only enforce
misconduct on the premises of the county, Orange County did not break any
such promises by terminating Harris for his conduct involving his truck. In
addition, Harris’s termination was not evidence that the Department had failed
to consistently enforce the Handbook.
[34] Finally, Harris argues that we should find an exception to the employment-at-
will doctrine based on public policy. He notes that Judge Robb of this Court
has written separate opinions in two cases arguing that provisions of employer
handbooks, as well as employers’ promises “should mean something.”
(Harris’s Br. 15) (citing Wynkoop, 970 N.E.2d at 238 (Robb., J., concurring
opinion)). He argues that the Handbook’s promises will only “mean
something” if we interpret it as a valid contract. In support of this argument, he
also contends that “[w]hen employees are satisfied and secure in their
employment, the employer is more assured that the employee will be
productive. Employees cannot be secure in their employment knowing that
employee policies regarding discipline may not be followed.” (Harris’s Br. 15).
[35] We decline to address this argument because it does not fall within one of the
exceptions that Indiana courts have recognized for the employment-at-will
doctrine, and we do not wish to create a new exception here. Indiana appellate
court have “consistently refused to create a public policy exception to the
employment[-]at[-]will doctrine in the absence of a statute defining public
policy.” Hamblin v. Danners, Inc., 478 N.E.2d 926, 929 (Ind. Ct. App. 1985); see
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 22 of 26
also Meyers v. Meyers, 861 N.E.2d 704, 707 (Ind. 2007) (“In Morgan Drive Away,
we emphasize that the ‘employment at will doctrine has steadfastly been
recognized and enforced as the public policy of this state’ and that ‘[r]evision or
rejection of the doctrine is better left to the legislature.’”) (quoting Morgan Drive
Away, Inc. v. Brant, 489 N.E.2d 933, 934 (Ind. 1986)). Moreover, as we have
already concluded, the Handbook did not contain any clear promises of
employment. Therefore, there are not any promises for us to enforce under the
guise of public policy.
2. Defamation
[36] Finally, Harris argues that the trial court erred when it granted Orange
County’s motion for summary judgment on his defamation claim. A
defamatory communication is “one that tends to harm a person’s reputation by
lowering the person in the community’s estimation or deterring third persons
from dealing or associating with the person.” Baker v. Tremco, Inc., 917 N.E.2d
650, 657 (Ind. 2009). To establish defamation, a plaintiff must prove the
following elements: (1) a communication with defamatory imputation; (2)
malice; (3) publication; and (4) damages. Shine v. Loomis, 836 N.E.2d 952, 956
(Ind. Ct. App. 2005), reh’g denied, trans. denied. A defendant in a defamation
case is entitled to summary judgment if he demonstrates that the undisputed
material facts negate at least one element of the plaintiff’s claim, id., or if he
demonstrates that he has a defense to defamation. See, e.g., Northern Ind. Pub.
Serv. Co. v. Dabagia, 721 N.E.2d 294, 301 (Ind. Ct. App. 1999) (noting that truth
is an affirmative defense to defamation), reh’g denied, trans. denied.
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 23 of 26
[37] Here, Orange County argued on summary judgment that the undisputed facts
demonstrated that it did not have any malice. In addition, it asserted that it had
two defenses to Harris’s defamation claim—(1) that its allegations in Harris’s
termination letter regarding Harris’s drinking were true; and (2) that it had a
qualified privilege to deliver the termination letter. The trial court entered a
general grant of summary judgment, so the record is unclear as to which basis it
granted summary judgment. However, we are not limited to reviewing the trial
court’s reasons for granting or denying summary judgment and may affirm
upon any theory supported by the designated materials. Old Romney
Development Co. v. Tippecanoe Cnty., 817 N.E.2d 1282, 1285 (Ind. Ct. App.
2004).
[38] Qualified privilege exists as a defense to defamation in order to accommodate
the important role of free and open intracompany communications and
legitimate human resource management needs. Bals v. Verduzco, 600 N.E.2d
1353, 1356 (Ind. 1992). This defense applies to communications “made in
good faith on any subject matter in which the party making the communication
has an interest or in reference to which he has a duty, either public or private,
either legal, moral, or social, if made to a person having a corresponding
interest or duty.” Id. Absent a factual dispute, whether a statement is protected
by a qualified privilege is a question of law. Id. Intracompany communications
regarding the fitness of an employee are protected by the qualified privilege. Id.
[39] Because Orange County’s statements in Harris’s termination letter were
intracompany communications that concerned his fitness to work, we conclude
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 24 of 26
that Orange County’s deliverance of the letter was protected by a qualified
privilege. See id. Nevertheless, a statement otherwise protected by the doctrine
of qualified privilege may lose its privileged character upon a showing of abuse
wherein: (1) the communicator was primarily motivated by ill-will in making
the statement; (2) there was excessive publication of the defamatory statements;
or (3) the statement was made without belief or grounds for belief in its truth.
Id. Once the statement is established as qualifiedly privileged, the plaintiff then
has the burden of overcoming that privilege by showing that it has been abused.
Id.
[40] Here, Harris did not meet his burden of showing that Orange County had
abused its qualified privilege. He did not designate any evidence that the letter
was motivated by ill-will, that it was published excessively, or that Orange
County did not believe in the truth of its allegations. Instead, the letter was
delivered solely to Harris. He asserts that his designated evidence that his co-
workers told him that they had heard he had “gotten the short end of the stick”
was evidence that the allegations against him were widely published. (App.
47). However, we find that, even if we consider his co-worker’s statements,
they merely proved that his co-workers knew his employment had been
terminated, not that the reason for his termination was published to them.
Accordingly, since Orange County had a qualified privilege to deliver Harris’s
termination letter, and there was no evidence that it abused that privilege, we
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 25 of 26
conclude that the trial court did not err in granting summary judgment in favor
of Orange County on Harris’s defamation claim.2
[41] Affirmed.
Crone, J., and Brown, J., concur.
2
[1] In its cross-appeal, Orange County argues that the trial court erred when it denied Orange County’s motion to
strike the portions of Harris’s affidavit where he discussed the statements of his co-workers and when it denied
Orange County’s motion to strike Harris’s designated political endorsement. Because we have found that the
evidence Orange County challenges is not dispositive, and because we may find in favor of Orange County
without considering its cross-appeal, we will not address the issues it raises in its cross-appeal any further.
Court of Appeals of Indiana | Opinion 59A05-1501-CT-37 | December 31, 2015 Page 26 of 26