Bienz v. Bloom, 02A03-9601-CV-23

• Decision Date: 23 December 1996
• Docket Number: No. 02A03-9601-CV-23,02A03-9601-CV-23
• Citation: 674 N.E.2d 998
• Parties: Leslie BIENZ, Appellant-Plaintiff, v. Linda K. BLOOM, Individually and as Auditor of Allen County, and Board of Commissioners of the County of Allen, Jack C. McComb, Edwin J. Rousseau, and Jack R. Worthman, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 998

674 N.E.2d 998

Leslie BIENZ, Appellant-Plaintiff, v. Linda K. BLOOM, Individually and as Auditor of Allen County, and Board of Commissioners of the County of Allen, Jack C. McComb, Edwin J. Rousseau, and Jack R. Worthman, Appellees-Defendants.

No. 02A03-9601-CV-23.

Court of Appeals of Indiana.

Dec. 23, 1996.

Rehearing Denied Feb. 25, 1997.

Edward N. Smith, Fort Wayne, for Appellant-Plaintiff.

John O. Feighner, Fort Wayne, for Appellee-Defendant Linda K. Bloom.

G. William Fishering, Shane P. Lee, Fort Wayne, for Appellee-Defendant Board of Commissioners of the County of Allen.

OPINION

HOFFMAN, Judge.

Appellant-plaintiff Leslie Bienz appeals from the grant of motions to dismiss in the favor of appellees-defendants Linda K. Bloom, Auditor of Allen County, and the Board of Commissioners of Allen County ("Board").

The facts relevant to the issues raised are as follows: Leslie Bienz began working in the Allen County Assessor's Office in 1975. In 1986, Linda Bloom was elected as the Allen County Auditor. In February 1988, Bloom offered Bienz a promotion to the position of Supervisor of Assessments. Bloom strongly implied that should Bienz accept the supervisory position, she would remain in the position as long as Bloom remained the Auditor of Allen County. Bienz accepted the position and worked until she was discharged from the position by Bloom on December 30, 1991.

On January 6, 1992, Bienz filed her grievance with Bloom, the Board, and the Allen County Personnel Director in accordance with the grievance procedures set forth in the Allen County Policy and Procedure Manual. In her grievance, Bienz alleged that Bloom discharged her because Bienz refused to assist Bloom in discriminatory practices against an African-American employee. Bienz further requested an opportunity to be heard on the discharge decision. Hearing no response, Bienz obtained an attorney and advised Bloom and the Board, in writing, that she would initiate a suit if she did not hear from them in a timely manner concerning her grievance. Bienz never filed a notice of tort claim with Bloom or the Board.

Hearing nothing further from Bloom or the Board, on August 31, 1993, Bienz commenced an action against the appellees in the United States District Court, Northern District of Indiana. In the federal claims, Bienz brought suit under 42 U.S.C. § 1983 claiming that her termination deprived her of property and liberty interests without due process, and that the Board engaged in a conspiracy to deprive her of constitutional rights. The district court granted summary judgment in favor of the appellees on December 7, 1994, and held that "[a]ny and all claims under § 1983 are dismissed with prejudice. Any and all claims which invoke Indiana state law are dismissed without prejudice, and may possibly be pursued in the court of the State of Indiana." Bienz appealed the district court's decision.

While her federal appeal was pending, Bienz filed her complaint in the instant cause with the state court on January 13, 1995. The complaint set forth seven counts, alleging federal and state constitutional violations, retaliatory discharge, breach of contract, defamation, conspiracy and two counts of intentional infliction of emotional distress.

On July 13, 1995, the United States Court of Appeals for the Seventh Circuit affirmed the district court's decision. Five days later, Bienz delivered the summons for the state action to the Clerk of the Court. Both Bloom and the Board filed motions to dismiss. A hearing was held on the matter; and, thereafter, the trial court granted both motions to dismiss, pursuant to Ind. Trial Rule 12(B)(1) and (6), on the grounds that Bienz had failed to give notice to Bloom and the Board as required by the Indiana Tort Claims Act.

On appeal from the trial court's dismissal of her cause, Bienz raises two issues: whether the claims stated in her complaint fall within the purview of the Indiana Tort Claims Act; and, if so, whether Bienz substantially complied with the notice provision of the Indiana Tort Claims Act.

It is well settled that a complaint may not be dismissed for failure to state a claim upon which relief may be granted,¹ unless it appears to a certainty on the face of the compliant that the complaining party is not entitled to any relief. Hanover Logansport v. Robert C. Anderson, 512 N.E.2d 465 (Ind.Ct.App.1987). In ruling on a motion to dismiss for failure to state a claim, the lower court is required to view the complaint in a light most favorable to the non-moving party and with every intendment in his favor. Id. The court may only look to the complaint, and well-pleaded material must be taken as admitted. Id. The T.R. 12(B)(6) motion to dismiss is properly utilized to test the legal sufficiency of the complaint or, stated differently, to test the law of the claim, not the facts that support it. Id.

This Court views motions to dismiss for failure to state a claim with disfavor because such motions undermine the policy of deciding causes of action on their merits. Hill v. Beghin, 644 N.E.2d 893, 895 (Ind.Ct.App.1994), trans. denied. When reviewing a trial court's grant of a motion to dismiss, this Court views the pleadings in a light most favorable to the non-moving party, and we draw every reasonable inference in favor of that party. Id. We will not affirm a dismissal under T.R. 12(B)(6) unless it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances. Id.

Bienz' first argument on appeal is that her claim did not fall within the purview of the Indiana Tort Claims Act ("Act"). Bienz specifically argues that her claim against Bloom and the Board sounded in contract, not in tort, and maintains that because contractual relationships are not governed by the Act, she was not required to give notice to Bloom and the Board pursuant to the Act.

Indiana recognizes the distinction between employees who are retained for a definite duration or subject to contract, and employees whose employment is of indefinite duration and may terminate at the will of the employer for any reason. Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 931, 939-940 (Ind.Ct.App.1994). This distinction between a contractual and an at-will employee gains significance in the context of an employee's termination. Id. at 940. While an employee of definite duration may possess a cause of action for breach of contract if an employer fires him in violation of the employment agreement, no such clear solution exists for the wrongfully terminated employee-at-will. Id. Thus, Indiana courts have recognized a limited and strictly construed exception to the doctrine of employment at will. Id.

In Frampton v. Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), our supreme court stated that an employee-at-will does possess a cause of action for wrongful discharge when an employer retaliates for the exercise of a statutorily conferred right or for the employee's refusal to perform an unlawful act or to breach a statutorily imposed duty. Id. at 253, 297 N.E.2d at 428. Our supreme court has further determined that, unlike the wrongful discharge of a time- or contract- bound employee, the retaliatory discharge of an employee-at-will gives rise to a cause of action in tort, rather than a claim for breach of contract. Remington, 644 N.E.2d 931, 940 (Ind.Ct.App.1994), citing Holtz v. Bd. of Com'rs of Elkhart County, 560 N.E.2d 645, 646 (Ind.1990); see also Scott v. Union Tank Car Co., 402 N.E.2d 992, 993 (Ind.Ct.App.1980) ("[T]he act of an employer who discharges [an employee-at-will] is one 'which is intended to cause an invasion of an interest legally protected from intentional invasion,' and is, therefore, a tortious act.").

The personnel manual adopted by Allen County defines those employees to whom grievance procedures apply as including:

only non-policy, non-confidential, non-supervisory individuals who fall within the jurisdiction of the adopting agency.

CAVEAT: Employees falling outside the above definition or working for a non-adopting official or agency are employees-at-will....

As Supervisor of Assessments, Bienz' duties included supervising a staff of six to ten persons and making recommendations to Bloom on whom to hire and fire. Bienz was, therefore, an employee-at-will. Although Bienz alleges that Bloom gave oral assurances of permanent employment, the promises were insufficient to establish a contract for permanent employment because there was no consideration in addition to the services contracted to be rendered. See Hamblen v. Danners, Inc., 478 N.E.2d 926, 928 (Ind.Ct.App.1985); see also Montgomery Ward & Co. v. Guignet, 112 Ind.App. 661, 672, 45 N.E.2d 337, 340 (1942).

Nevertheless, Bloom's retaliatory discharge of Bienz, allegedly for Bienz' failure to participate in an unlawful act, invaded Bienz' legally protected interest in keeping her job. However, because Bienz was an employee-at-will, Bloom's act gave rise to a cause of action in tort, not for breach of contract. Therefore, Bienz' only avenue of redress for retaliatory discharge must be in tort. See Holtz, 560 N.E.2d at 646.

Having determined that Bienz' action against Bloom and the Board sounds in tort, the question then arises: whether Bienz' cause of action is governed by the Act?

Section 1 of the Act is as follows: "This chapter applies only to a claim or suit in tort." IND.CODE § 34-4-16.5-1 (1988 Ed.). The pertinent language of Section 7 of the Act states:

(a) Except as provided in [IND.CODE § 34-4-16.5-8, dealing with incompetent claimants] of this chapter, a claim against a political subdivision is barred unless notice is filed with:

(1) the governing body of that political subdivision; and

(2) the Indiana political subdivision risk management commission created under [IND.CODE § 27-1-29] within one hundred eighty (180) days after the loss occurs.

IND.CODE § 34-4-16.5-7 (1988...