Campbell v. Eli Lilly & Co.

• Decision Date: 12 June 1981
• Docket Number: No. 2-580A151,2-580A151
• Citation: 421 N.E.2d 1099
• Parties: James T. CAMPBELL, Appellant (Plaintiff below), v. ELI LILLY & COMPANY, Appellee (Defendant below).
• Court: Indiana Supreme Court

Page 1099

421 N.E.2d 1099

James T. CAMPBELL, Appellant (Plaintiff below), v. ELI LILLY & COMPANY, Appellee (Defendant below).

No. 2-580A151.

Supreme Court of Indiana.

June 12, 1981.

Bruner & Frische, Indianapolis, Alan B. Morrison, Washington, D. C., for appellant.

Stephen W. Terry, Jr. and John W. Purcell, Baker & Daniels, Indianapolis, for appellee.

Petition to Transfer Denied.

(For opinion of Court of Appeals see 413 N.E.2d 1054.)

ON PETITION TO TRANSFER

HUNTER, Justice, dissenting to denial of transfer.

I must respectfully dissent from this Court's refusal to grant Campbell's petition for transfer, wherein he sought review of the Court of Appeals' opinion in Campbell v. Eli Lilly & Co., (1980) Ind.App., 413 N.E.2d 1054 (Ratliff, J., dissenting in part). There, solely on the basis of the common law employment at will doctrine, ¹ the court upheld the summary judgment entered on Campbell's suit, which was based on his alleged retaliatory dismissal. Specifically, Campbell charged in his complaint that defendant fired him for reporting to his superiors the dangerous and lethal effects of various company-manufactured drugs (Apridine, Darvon, and Monensin) which were undergoing research in defendant's laboratories.

Unlike the Court of Appeals, I would hold that these allegations state a claim upon which relief could be granted. In so ruling, I would recognize an exception to the employment at will doctrine based on public policy; that exception would embrace circumstances wherein, as here, a vital interest of the state as defined by statute or common law would clearly be defeated were the discharged employee denied a cause of action.

Rarely in the law do we confront such compelling circumstances for the re-examination of an existing legal principle. Long the rule in Indiana, the employment at will doctrine simply means that employment contracts for an unspecified period of time have been recognized in law as terminable at the will of either employer or employee, with or without cause. Here, the rule operates to deny Campbell any recourse in law, even though his actions which allegedly prompted his discharge served a vital public interest defined by statute the protection of the public from dangerous drugs. See generally, 21 U.S.C. § 301 et seq. (1972). Assuming the veracity of Campbell's allegations, the refusal of the law to recognize his retaliatory discharge as actionable is repugnant.

This Court has recognized that the employment at will doctrine is not inviolate. In Frampton v. Central Indiana Gas Company, (1973), 260 Ind. 249, 297 N.E.2d 425, we held that an employee who alleged she was discharged in retaliation for filing a workmen's compensation claim stated a claim upon which relief could be granted. Our recognition of that exception to the employment at will doctrine was based on the conclusion that to hold otherwise would clearly contravene the public policy considerations surrounding our workmen's compensation scheme. We grounded the opinion on the legislature's express statement that no "device" should "operate to relieve any employer in whole or in part of any obligation created by this act (Workmen's Compensation)." 260 Ind. at 252, 297 N.E.2d at 428. Inasmuch as the threat of retaliatory discharge would operate to relieve an employer of his statutory duty to compensate an injured employee, we recognized such a dismissal as actionable.

Subsequent decisions in this jurisdiction have limited the applicability of the exception recognized in Frampton to the circumstances present in that case. Martin v. Platt, (1979) Ind.App., 386 N.E.2d 1026 (no petition for transfer filed); Shaw v. S. S. Kresge Company, (1975) 167 Ind.App. 1, 328 N.E.2d 775. Martin v. Platt, supra, which was vigorously criticized in Townsend, 1979 Survey of Recent Developments in Indiana Law, 13 Ind.L.Rev. 381 (1979), involved facts very similar to the case at bar. There, the employees-plaintiffs alleged that they were discharged in retaliation for reporting to their superiors that officers of the employing corporation were receiving kickbacks. On the basis of their status as employees at will, the Court affirmed the summary judgment entered against their suit.

Notwithstanding the decisions in Martin and Shaw, judges of our appellate tribunals have leveled criticism at the employment at will doctrine. See, Scott v. Union Tank Car Co., (1980) Ind.App., 402 N.E.2d 992, 995 (Staton, J. dissenting: "(T)he inflexible application of the 'employment at will' doctrine simply is not always consonant with the ends of justice.") In the instant case, Judge Ratliff, dissenting below, analyzed extensively the employment at will doctrine vis-a-vis the public policy considerations involved, and concluded:

" * I would not so strictly limit the Frampton rule as did the Third District in Martin v. Platt, supra. Instead, I would extend the protection of the 'public policy exception' to grant a right of action for damages to any employee at will whose wrongful and retaliatory discharge contravenes clearly established public policy. * * *

"The appropriate remedy, in my view, as supported by the cases and commentary cited herein, is a tort action for damages. (Footnote omitted.) Giving such a right of action for damages would serve as a deterrent to retaliatory discharge and would promote the very same strong and compelling public policy which the retaliatory discharge would violate." Campbell v. Eli Lilly & Co., supra, at 1067.

I agree with Judge Ratliff in these respects.

It seems wholly illogical that on the one hand, as in Frampton, we permit a cause of action where a statutory policy operates to the specific benefit of the employee, while on the other, as here and in Martin, a cause of action is denied where the statutory policy inures to the general welfare. In each instance, a public policy has been clearly stated by statute; in each instance, the fear of retaliatory discharge without recourse in law would obviously work to frustrate or thwart the clearly expressed policy. For as Judge Ratliff succinctly acknowledged in his dissenting opinion:

"Neither crystal ball nor prophetic power is required in order to discern that if such a whistle-blower may be retaliatorily discharged without recourse, the intimidating effect upon other employees will ensure that the first whistle-blower will also be the last." Id.

The exercise of civic duty or, as the case might be, professional ethical responsibilities, should not lightly be discouraged. Our government yet seeks citizen input to improve the quality of life and perpetuate the pursuit of life, liberty, and happiness; our law enforcement agencies still actively solicit citizens to report crimes which they witness. ² Indeed, in the areas of food and drug safety and white collar crime, such as allegedly present here and in Martin, the government's ability to police wrongdoing of a tortious or criminal nature rests in large part on the hope that businesses will deal in good faith and report accurately and completely.

Our continued inflexible application of the rule, however, not only neuters the internal check which the aware employee inherently supplies, but also ultimately deprives the government of information concerning goods or conduct potentially injurious to the public welfare. It is these dubious ramifications which should not be countenanced, as well as the callous treatment which the rule permits to be foisted on the citizen who, in good faith, acts on the principle of civic duty or the mandates of a professional ethical code.

To be sure, there are employees with "axes to grind" who, motivated by paranoia or personal conflict, make groundless allegations to superiors and thereby warrant discharge. Just as surely there are business operations which, for monetary gain or reputation, are conducted in a negligent or criminal manner. These are not questions of law, however, and are not at issue here. ³ Our sole concern is whether the law should permit Campbell to present his case to a jury and allow it to decide if in fact he acted responsibly in reporting to his superiors and if in fact Eli Lilly dismissed him in retaliation for so reporting. Our courts should be open for the resolution of these questions.

Our continued inflexible application of the employment at will doctrine in circumstances such as those presented here, as well as in Martin v. Platt, supra, flies in the face of a rapidly growing tide of contrary authority. Jurisdiction after jurisdiction, when confronted with circumstances equally offensive to clearly mandated public policy, has recognized a cause of action for a discharged employee. See, e. g., Tameny v. Atlantic Richfield Co., (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (employee allegedly discharged for refusal to participate in illegal gasoline price-fixing); Petermann v. International Brotherhood of Teamsters, (1959) 174 Cal.App. 184, 344 P.2d 25 (employee allegedly discharged for refusal to give false testimony to legislative committee); Sheets v. Teddy's Frosted Foods, Inc., (1980) 179 Conn. 471, 427 A.2d 385 (employee allegedly discharged for calling to attention of employer violations of law prohibiting mislabeling of food); Palmateer v. International Harvester Company, (1981) 85 Ill. 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (employee allegedly discharged for informing law enforcement officials that fellow employee was violating criminal code); Trombetta v. Detroit, Toledo & Ironton R. R. Co., (1978) 81 Mich.App. 489, 265 N.W.2d 385 (employee allegedly discharged for refusing to falsify official reports); Pierce v. Ortho Pharmaceutical Corp., (1979) 166 N.J.Super. 335, 399 A.2d 1023 (employee-doctor allegedly discharged for difference of opinion regarding safety of...