John Fenicle v. Indiana School for the Deaf (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any
court except for the purpose of establishing Dec 23 2020, 9:54 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Sandra L. Blevins Curtis T. Hill, Jr.
Jamie A. Maddox Attorney General
Betz + Blevins Benjamin M. L. Jones
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Fenicle, December 23, 2020
Appellant-Plaintiff/Petitioner, Court of Appeals Case No.
20A-CT-940
v. Appeal from the
Marion Superior Court
Indiana School for the Deaf; The Honorable
Indiana School for the Deaf Timothy W. Oakes, Judge
Board; Ed Clere, Individually Trial Court Cause No.
and in his Official Capacity; Ann 49D02-1707-CT-26570
Reifel, Individually and in her
Official Capacity; Kelly
Dibenedetto, Individually and in
her Official Capacity; Traci
Tetrick, Individually and in her
Official Capacity; Ray Furner,
Individually and in his Official
Capacity; Lucy Witte,
Court of Appeals of Indiana | Memorandum Decision 20A-CT-940 | December 23, 2020 Page 1 of 13
Individually and in her Official
Capacity; Dr. David Geeslin,
Individually and in his Official
Capacity; The State Employees’
Appeals Commission; and
Gabriel Paul, Individually and in
his Official Capacity,
Appellees-Defendants/Respondents
Vaidik, Judge.
Case Summary
[1] John Fenicle appeals the trial court’s judgment against him in this action arising
from his termination as a teacher at the Indiana School for the Deaf (“the
School”). We affirm.
Facts and Procedural History
[2] Fenicle began working as a teacher for the School in 2000. He was an
“unclassified” state employee. See Appellant’s App. Vol. IV p. 14. Such an
employee 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.” Ind. Code §
4-15-2.2-24.
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[3] Late 2015 was a tumultuous time for Fenicle. He filed multiple complaints
claiming students in his classes were being disruptive, and the mother of one of
those students—another employee of the School—filed her own complaint
against him. In December 2015, the School suspended Fenicle without pay
because “[a] complaint, which involves students, has recently been lodged, and
requires investigation.” Appellant’s App. Vol. IV p. 18. Three weeks later, the
School terminated Fenicle’s employment in a letter that stated, in part:
As stated in the ISD Staff Handbook, a safe, secure, inviting and
healthy school environment is essential to learning. All students
have a right to have their individual needs met through learning
opportunities that promote optimum success and independence.
Your failure to provide students with this required support after
repeatedly being given the direction and tools to do so is
unacceptable. This is the reason for this disciplinary action.
Id. at 19. Students and behavioral specialists had reported that in Fenicle’s
classes students “rarely used a textbook,” “[t]ests did not look similar to what
they learned in class,” and Fenicle “was on the computer all the time,” “rarely
helped” students, “often gave wrong answers,” “ignored” students, “moved on
with the lessons without pausing to attend students’ questions about math
problems,” and would start “a new lesson one day and then drop the new
lesson [the] next day.” Appellant’s App. Vol. V pp. 219-22. A school
psychologist reported Fenicle failed to meet with him about one student’s
Individualized Education Program and resisted providing accommodations to
another student. Id. at 229.
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[4] Fenicle denied the allegations against him and appealed his termination to the
State Employees’ Appeals Commission (SEAC). He alleged his termination
was “unlawful” because it was not really based on his job performance but
rather on (1) the fact he “repeatedly complained to individuals” at the School
“regarding the behavioral issues he was confronting” with certain students and
(2) “his work with the Indiana Department of Education on the ASL
[American Sign Language] Assessment,” which was against the wishes of
Interim Principal Dawniela Patterson. Appellant’s App. Vol. IV pp. 12-13.1 He
also claimed his “due process rights were violated by the Indiana School for the
Deaf based upon its lack of a proper investigation involving allegations made by
students against [him] as well as a lack of investigation of the complaints [he]
made against students.” Id. at 13. In addition, he claimed the School “failed to
pay all monies owed” to him. Id. The School eventually moved for summary
judgment, which the SEAC granted in June 2017.
[5] Fenicle then filed a combined complaint and petition for judicial review in
Marion Superior Court, naming eleven defendants: the School; the School
Board; six members of the School Board in their individual and official
capacities; Dr. David Geeslin, the School’s CEO/Superintendent, individually
and in his official capacity; the SEAC; and the SEAC’s administrative law
judge, Gabriel Paul, individually and in his official capacity. Count I was a
1
Fenicle also claimed he was terminated because he is deaf, in violation of the Americans with Disabilities
Act. He later abandoned that claim.
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claim under 42 U.S.C. § 1983, alleging the defendants “intentionally and/or
recklessly failed to employ sufficient procedural safeguards to ensure the
adequate preservation of Mr. Fenicle’s property interest in his employment,”
Appellant’s App. Vol. II p. 119, in violation of Fenicle’s rights to procedural
and substantive due process under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Count II was a petition for
judicial review of the SEAC’s decision.
[6] On Fenicle’s Section 1983 claim, the institutional defendants—the School, the
School Board, and the SEAC—moved for dismissal, and the individual
defendants moved for judgment on the pleadings. The trial court granted both
motions. Fenicle and the School then filed briefs on the petition for judicial
review. The trial court denied Fenicle’s petition, allowing the SEAC’s decision
to stand.
[7] Fenicle now appeals.
Discussion and Decision
[8] Fenicle contends the trial court erred by granting the individual defendants
judgment on the pleadings on his claims under Section 1983 (he does not
challenge the dismissal of his Section 1983 claims against the School, the
School Board, and the SEAC). He also appeals the trial court’s denial of his
petition for judicial review of the SEAC’s decision.
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I. Section 1983
[9] We review de novo a trial court’s ruling on a motion for judgment on the
pleadings. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010). “We
accept as true the well-pleaded material facts alleged in the complaint, and base
our ruling solely on the pleadings.” Id. Such a motion is to be granted only
where it is clear from the face of the complaint that under no circumstances
could relief be granted. Id. The moving party is deemed to have admitted the
well-pleaded facts favoring the nonmovant, and we will draw all reasonable
inferences in favor of the nonmovant. Bettenhausen v. Godby, 878 N.E.2d 1277,
1278 (Ind. Ct. App. 2008).
[10] In his claim under Section 1983, Fenicle alleged the defendants violated his
rights to procedural due process and substantive due process under the Due
Process Clause of the Fourteenth Amendment to the United State Constitution.
The Due Process Clause provides that no state shall “deprive any person of life,
liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, §
1. As a threshold matter, then, a plaintiff claiming a violation of the Due
Process Clause—either the procedural component or the substantive
component—must have been deprived of “life, liberty, or property.” See
Bankhead v. Walker, 846 N.E.2d 1048, 1053 (Ind. Ct. App. 2006) (procedural
due process); Swami, Inc. v. Lee, 841 N.E.2d 1173, 1180 (Ind. Ct. App. 2006)
(substantive due process), trans. denied. Fenicle claims he had, and was deprived
of, a “property interest in his employment.” Appellant’s Br. p. 32. The
defendants argue he had no such interest. We agree with the defendants.
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[11] The United States Supreme Court has explained that to have a property interest
in employment, “a person clearly must have more than an abstract need or
desire for it. He must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972). Property interests are not created by
the federal constitution. Id. “Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an independent
source such as state law—rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits.” Id.[12] Again, Fenicle was an “unclassified” employee of the state, and such an
employee 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.” I.C. § 4-15-
2.2-24. “As a general rule, an employee at will has no property interest in
further employment.” Phegley v. Ind. Dep’t of Highways, 564 N.E.2d 291, 295
(Ind. Ct. App. 1990), trans. denied. The defendants assert that as an unclassified,
at-will employee, Fenicle “had no property interest in his employment
protected by the due process clause,” and his “allegations concerning [the
School’s] investigation and its procedure for his dismissal warrant no relief.”
Appellees’ Br. p. 28. In his reply brief, Fenicle offers no response to this
argument. Because Fenicle did not have a property interest in his employment
and has not otherwise alleged a deprivation of life, liberty, or property, his
rights under the Due Process Clause of the Fourteenth Amendment were not
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implicated, let alone violated, by his termination. Therefore, we affirm the trial
court’s grant of judgment on the pleadings on his claim under Section 1983.2
II. Petition for Judicial Review
[13] Fenicle also contends the trial court erred by denying his petition for judicial
review of the SEAC’s decision. We review an agency action directly, applying
the same standard as the trial court and giving no deference to its decision.
Baliga v. Ind. Horse Racing Comm’n, 112 N.E.3d 731, 736 (Ind. Ct. App. 2019),
reh’g denied, trans. denied. A court can reverse an agency action only if it 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). “The burden of demonstrating the invalidity of
agency action is on the party to the judicial review proceeding asserting
invalidity.” Id. at (a).
[14] Fenicle argues the SEAC’s order granting summary judgment to the School and
upholding his termination was arbitrary and capricious for three reasons. First,
2
Fenicle cites the United States Supreme Court’s holding that “the liberty component of the Fourteenth
Amendment’s Due Process Clause includes some generalized due process right to choose one’s field of
private employment[.]” Conn v. Gabbert, 526 U.S. 286, 291-92 (1999). But he has only been terminated from a
single teaching position, not completely barred from the teaching “field.” He makes no argument to the
contrary.
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he says he had a “statutory duty” under the federal Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. §§ 1400-1482, to ensure his students were
receiving a “free appropriate public education,” or “FAPE,” his complaints
about disruptive students were an effort to satisfy that duty, and he was
terminated for making those complaints. Appellant’s Br. p. 40. Second, he
asserts, “The School’s sham investigations of complaints made by Fenicle about
several disruptive students as well as the School’s sham investigation of a single
complaint made about Fenicle violated Fenicle’s Due Process Rights.” Id. at 43.
Third, he claims he was terminated “in retaliation for his work with the Indiana
Department of Education on the ASL Assessment.” Id. at 45. The SEAC and
the trial court rejected all three arguments, and so do we.
[15] Fenicle’s due-process claim fails for the same reason his Section 1983 due-
process claims fail: he did not have a “property interest” in his at-will
employment. See Part I, supra. Regarding his FAPE and retaliation claims, we
begin by reiterating that an unclassified state employee 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.” I.C. § 4-15-2.2-24. This follows Indiana’s
employment-at-will doctrine, “under which employment may be terminated by
either party at will, with or without reason.” Wior v. Anchor Indus., Inc., 669
N.E.2d 172, 175 (Ind. 1996), reh’g denied. The “public policy” exception to this
doctrine protects an at-will employee from being terminated for “exercising a
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clear statutory right or obeying a legal duty.” Perkins v. Mem’l Hosp. of S. Bend,
141 N.E.3d 1231, 1235 (Ind. 2020).
[16] In support of his claim he was terminated for trying to satisfy his alleged
statutory duty to provide his students a FAPE, Fenicle asserts:
Because Fenicle was concerned about a few select students’
disruptive behavior affecting the educational needs of the non-
disruptive students, Fenicle filed complaints about these students
beginning in November of 2015, including complaints about
Student A. In response, Student A’s mother, who is also an
employee of the School, filed an unfounded, baseless complaint
against Fenicle.
Appellant’s Br. p. 43. As an initial matter, Fenicle cites nothing in the record
indicating that Student A’s mother filed her complaint about him “in response”
to Fenicle’s complaints about the disruptive students, let alone that the School
terminated him because of those complaints. See Ind. Appellate Rule
46(A)(8)(a) (requiring that each contention in the argument section of the
appellant’s brief be supported by citations to “the Appendix or parts of the
Record on Appeal relied on”). But even if the School terminated Fenicle for
making the complaints, i.e., for trying to ensure his students were receiving a
FAPE, Fenicle has not cited any specific provision of the IDEA in support of
his claim that he, as a teacher, had a personal duty to provide a FAPE. Our
research suggests that this duty lies with the states that accept IDEA funds and
schools themselves, not individual teachers. See 20 U.S.C. § 1412(a)(1)
(providing that for “[a] State” to be eligible for assistance under the IDEA it
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must ensure “[a] free appropriate public education is available to all children
with disabilities residing in the State between the ages of 3 and 21” (emphasis
added)); Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct.
988, 999 (2017) (“To meet its substantive obligation under the IDEA, a school
must offer an IEP reasonably calculated to enable a child to make progress
appropriate in light of the child's circumstances.” (emphasis added)). Because
Fenicle has not established that he had a legal duty to provide his students a
FAPE, even if he was terminated for trying to provide a FAPE, it cannot be
said that he was terminated for “obeying a legal duty,” as required under the
public-policy exception to the employment-at-will doctrine. See Perkins, 141
N.E.3d at 1235.
[17] As for his claim he was terminated in retaliation for his work with the Indiana
Department of Education on an ASL assessment, Fenicle argues:
Although Fenicle had worked with the DOE for several years,
Ms. Patterson did not want Fenicle to work directly with the
DOE on assessments, but, instead, wanted Fenicle to only be a
representative for the School. Ms. Patterson and others at the
School wanted to create the School’s own ASL standards and
curriculum without the DOE’s involvement, and Fenicle had
worked closely with the DOE on ASL standards for years.
Fenicle’s work with the DOE, however, would jeopardize the
School’s desire to remain free from the DOE’s involvement. The
School was concerned with its accreditation status with the DOE
as the School recently admitted that it needed to work on certain
programs[.]
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Appellant’s Br. pp. 45-46 (record citations omitted). For purposes of this
discussion, we can assume Fenicle was terminated because of his work with the
DOE, as opposed to the in-class issues referenced in his termination letter. The
problem with Fenicle’s argument is it does not include a single citation to legal
authority. See App. R. 46(A)(8)(a) (requiring that each contention in the
argument section of an appellant’s brief be supported by citations to the
authorities relied on). More specifically, Fenicle fails to establish that he had a
“statutory right” or a “legal duty” to work with the DOE. See Perkins, 141
N.E.3d at 1235. Therefore, even if Fenicle was terminated because of that work,
his termination does not fall within the public-policy exception to the
employment-at-will doctrine, and the SEAC properly rejected Fenicle’s
retaliation claim.
[18] Fenicle also argues the SEAC should have ordered the School to pay him (1)
$21,087.12 for unused vacation, sick, and personal time, (2) $42.86 for one hour
of compensatory time, and (3) $6,455.04 in “spread payments” for “his
employment from August 18, 2015 to December 14, 2016,” because “[t]he
School spread Fenicle’s paychecks over 26 pay periods, rather than 19 pay
periods; thus, he has been paid less than he should have been.” Appellant’s Br.
pp. 47-48. Regarding vacation, sick, and personal time, a regulation of the State
Personnel Department provides that “[a] dismissed employee shall forfeit all
accrued sick, personal, and vacation leave.” 31 Ind. Admin. Code 5-12-3(d).
Fenicle acknowledges this regulation but contends it does not apply because he
was “unlawfully terminated.” Appellant’s Reply Br. p. 16. His claims for
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compensatory time and “spread payments” are also based on the premise that
his termination was unlawful. Appellant’s Br. pp. 47-48; Appellant’s Reply Br.
pp. 15-16. Because the SEAC correctly concluded Fenicle’s termination was not
unlawful, his claims for payment necessarily fail.
[19] Affirmed.
Bailey, J., and Weissmann, J., concur.
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