Bentz Metal Products Co., Inc. v. Stephans

• Decision Date: 21 November 1995
• Docket Number: No. 02A04-9506-CV-212,02A04-9506-CV-212
• Citation: 657 N.E.2d 1245
• Parties: 11 IER Cases 287 BENTZ METAL PRODUCTS COMPANY, INC., Appellant-Defendant, v. Kermit J. STEPHANS, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1245

657 N.E.2d 1245

11 IER Cases 287

BENTZ METAL PRODUCTS COMPANY, INC., Appellant-Defendant, v. Kermit J. STEPHANS, Appellee-Plaintiff.

No. 02A04-9506-CV-212.

Court of Appeals of Indiana.

Nov. 21, 1995.

Michael A. Scheer, Jeffrey S. Schafer, Gallucci, Hopkins & Theisen, Fort Wayne, for Appellant.

Christopher C. Myers, Myers & Geisleman, Fort Wayne, for Appellee.

OPINION

RILEY, Judge.

Defendant-Appellant Bentz Metal Products, Inc. (Bentz) filed this interlocutory appeal challenging the denial of its motion to dismiss the claim of Appellee-Plaintiff Kermit J. Stephan. Bentz asks us to decide whether a cause of action for wrongful termination is available to an employee covered by a collective bargaining agreement.

We affirm.

FACTS

As a Bentz employee, Stephans was a member of the International Union, United Automobile, Aerospace and Agriculture Implement Workers of America, U.A.W., Local # 2298 (the "Union"). In 1990, Bentz and the Union ratified and signed a collective bargaining agreement (the "Agreement") which provides, in part, for grievance procedures to settle "any dispute between an employee or the Union and [Bentz] during the term of the Agreement with respect to pay, wages or any other working condition." (R. at 27-28). The definition of "General Working Conditions" in the Agreement does not include retaliatory discharge, and the Agreement contains no language regarding a procedure to handle retaliatory discharge claims. See Id. at 21-46.

On June 4, 1992, Stephans was injured while performing his duties for Bentz. He was released to go back to work on June 23, 1992; however, at the end of his first day back to work, Stephans was terminated. Within five days of his termination, the Union filed a grievance, which remained in the system until June 7, 1994, when the Union withdrew it.

On June 24, 1994, Stephans filed the present action, alleging that he was terminated in retaliation for seeking medical treatment for a work-related injury and for informing Bentz that he was going to file a claim pursuant to Indiana's Workers' Compensation Act, IND.CODE 22-3-2-1, et. seq. (1993). On November 14, 1994, Bentz responded with a motion to dismiss pursuant to Ind.Trial Rule 12(B)(6). Upon denying dismissal on March 3, 1995, the trial court found that Frampton v. Central Indiana Gas Co. (1973), 260 Ind. 249, 297 N.E.2d 425, provides Stephans with a cause of action. (R. at 105-06). The trial court certified this action for interlocutory appeal which we granted for review on June 23, 1995.

DISCUSSION

A complaint is not subject to dismissal unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts. State v. Rankin (1973), 260 Ind. 228, 230, 294 N.E.2d 604, 606; First Nat. Bank of Danville v. Reynolds, (1986), Ind.App., 491 N.E.2d 218, 220. The allegations of the complaint are taken as true and the plaintiff is entitled to all reasonable inferences which could be drawn therefrom. Id.; Gladis v. Melloh (1971), 149 Ind.App. 466, 469, 273 N.E.2d 767, 769. On appeal from a denial of a motion to dismiss, we apply essentially the same standard as the trial court to see whether the trial court acted properly in denying the Motions to Dismiss under T.R. 12(B)(6). Iglesias v. Wells, (1982), Ind.App., 441 N.E.2d 1017, 1018.

Bentz states that Frampton created a cause of action for an employee at-will who alleges that he or she has been discharged in retaliation for pursuing his or her rights under the Workers' Compensation Act. However, Bentz alleges that the trial court erred in finding that Frampton provides Stephans with a cause of action because, at the time of his discharge, Stephans was not an employee at-will as he was protected by a collective bargaining agreement and thus was not an otherwise remediless employee whom the supreme court in Frampton sought to protect. Indeed, Bentz depends heavily on a single sentence from that opinion in which our supreme court stated: "[o]nce an employee knows he is remediless if retaliatorily discharged, he is unlikely to file a claim." Frampton, 260 Ind. at 252, 297 N.E.2d at 428. However, the supreme court did not take as its primary focus Dorothy Frampton's remedilessness, rather the court expressed concern about the intentional, tortious act of her employer. The emphasis in Frampton was the harm done to an employee:

Retaliatory discharge for filing a workmen's compensation claim is a wrongful, unconscionable act and should be actionable in a court of law ... [W]e hold that an employee who alleges he or she was retaliatorily discharged for filing a claim pursuant to the Indiana Workmen's Compensation Act or the Indiana Workmen's Occupational Diseases Act has stated a claim upon which relief can be granted. We further hold that such a discharge would constitute an intentional, wrongful act on the part of the employer for which the injured employee is entitled to be fully compensated in damages. Of course, the issue of retaliation should be a question for the trier of fact ... We agree with the Court of Appeals that, under ordinary circumstances, an employee at-will may be discharged without cause. However, when an employee is discharged solely for exercising a statutorily conferred right an exception to the general rule must be recognized.

Frampton, 260 Ind. at 252-53, 297 N.E.2d at 428 (citations omitted). Thus, in light of Frampton 's emphasis on a wrongful act and compensation for damages sustained by the employee, we can not agree that the complete remedilessness of an employee is a prerequisite to filing a retaliatory discharge claim.

Bentz contends that the narrow exception delineated in Frampton has been further limited since that time. While we agree the cause of action created by Frampton has not been broadly construed by Indiana courts, attempts to enlarge the Frampton exception have uniformly questioned the type of public policy embodied in the statutorily defined right or duty. ¹ See e.g. McClanahan v. Remington Freight Lines (1988), Ind., 517 N.E.2d 390, 393; Morgan Drive Away, Inc. v. Brant (1986), Ind., 489 N.E.2d 933, 934; Call v. Scott Brass, Inc. (1990), Ind.App., 553 N.E.2d 1225, 1227, trans. denied; Lawson v. Haven Hubbard Homes (1990), Ind.App., 551 N.E.2d 855, 860; Campbell v. Eli Lilly Co. (1980), Ind.App., 413 N.E.2d 1054, 1061, trans. denied (1981) 421 N.E.2d 1099. This existing case law offers little guidance in the present action, in which the challenge is to the status of the plaintiff-employee--that is, whether Stephans is an at-will employee. ²

Historically, Indiana has recognized two forms of employment: 1) employment for a definite term; and, 2) employment at-will. Orr v. Westminster Village North, Inc. (1995), Ind.App., 651 N.E.2d 795, 798, reh'g denied; see Atkins v. Board of School Comm'rs of City of Indianapolis (1993), S.D.Ind., 830 F.Supp. 1169, 1181. A contract for term employment is created when the parties agree that employment shall continue for a fixed or ascertainable period. Orr, 651 N.E.2d at 798. If no definite or ascertainable period of employment is agreed upon, the employment is at-will, Rice v. Grant County Bd. of Comm'rs (1984), Ind.App., 472 N.E.2d 213, 214, reh'g denied, trans. denied, and is presumptively terminable at any time, without liability, at the election of either party. See McClanahan, 517 N.E.2d at 392.

The union contract under which Stephans worked was for an indefinite period, thus, he was not a term employee and may be considered, under the above definition an at-will employee. See Rice, 472 N.E.2d at 214; see also Haas Carriage, Inc. v. Berna (1995), Ind.App., 651 N.E.2d 284, 286 (plaintiff was an at-will employee without a written or oral employment agreement, inferring that at-will employment could be subject to an employment agreement). However, pursuant to the Agreement signed and ratified by the Union, Stephans could not be terminated at any time without liability.

Bentz argues that the "hallmark of employment at-will is the requirement that either party may terminate the employment relationship for any reason or no reason at all. Employment which is governed by a contract is not employment at-will. Employment which cannot be terminated, except for just cause, is not employment at-will." Appellant's Brief at 15 (emphasis in original). We find this is not so. In Campbell, 413 N.E.2d 1054, this court examined the employment at-will doctrine in light of Frampton and found:

It was early stated:

The rule seems to be well settled, by the great weight of authority, that where, by the terms of a contract, whether it be written or verbal, where the contract is one for employment, and by its terms, the tenure of service cannot be determined, such contract is one at-will, and may be terminated...