Call v. Scott Brass, Inc.

• Decision Date: 09 May 1990
• Docket Number: No. 75A04-8906-CV-241,75A04-8906-CV-241
• Citation: 553 N.E.2d 1225
• Parties: 115 Lab.Cas. P 56,229, 5 IER Cases 865 Kathryn CALL, Appellant (Plaintiff Below), v. SCOTT BRASS, INC., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1225

553 N.E.2d 1225

115 Lab.Cas. P 56,229, 5 IER Cases 865

Kathryn CALL, Appellant (Plaintiff Below), v. SCOTT BRASS, INC., Appellee (Defendant Below).

No. 75A04-8906-CV-241.

Court of Appeals of Indiana,

Fourth District.

May 9, 1990.

Joseph V. Simeri, Rebecca Hoyt Fischer, Kramer, Butler, Simeri, Konopa & Laderer, South Bend, for appellant.

Kathleen K. Brickley, Scott A. Moorman, Barnes & Thornburg, South Bend, for appellee.

CHEZEM, Presiding Judge.

Case Summary

Appellant, Call, appeals the trial court's entry of summary judgment in favor of Appellee, Scott Brass. We reverse.

Issue

Whether the I.C. 34-4-29-1 is the exclusive remedy for an at will employee who is discharged for compliance with a summons to appear for jury service.

Facts

Call was the Corporate Human Resource Manager for Scott Brass. On October 30, 1986, Call received a summons to appear for jury duty commencing November 3, 1986. After receiving the summons, Call was allegedly told by the plant manager that if she complied with the summons and appeared for jury duty, her employment with Scott Brass would be terminated.

Call appeared for jury duty on November 3, 1986 in compliance with the summons. On November 13, 1986, Scott Brass terminated Call's employment.

On March 9, 1987, Call filed a complaint in the St. Joseph Superior Court against Scott Brass alleging that she was terminated from her position as Corporate Human Resource Manager because she complied with her statutory duty to appear for jury service. In her complaint, Call sought back pay, lost benefits, future lost wages, punitive damages and costs.

On April 1, 1987, Scott Brass filed a motion to dismiss, pursuant to Ind. Trial Rule 12(B)(6), claiming that Call's action was barred since she failed to bring her claim within ninety (90) days as is prescribed by I.C. 34-4-29-1. The St. Joseph Superior Court denied the motion to dismiss and found that I.C. 34-4-29-1 was not Call's exclusive remedy; the court found that Call could bring an action for wrongful discharge pursuant to the public policy exception to the general rule that an at will employee may be terminated for any reason by the employer. ¹

On August 27, 1987, the case was venued to the Starke Circuit Court. Scott Brass filed a motion for summary judgment. On March 7, 1989, the Starke Circuit Court granted the motion and entered judgment against Call on her complaint; the court found that I.C. 34-4-29-1 was her exclusive remedy and that she had not filed her claim within the required ninety (90) days.

Discussion and Decision

I.C. 35-44-3-10 reads as follows:

A person who knowingly or intentionally:

(1) dismisses his employee;

(2) deprives his employee of employment benefits; or

(3) threatens such a dismissal or deprivation;

because the employee has received or responded to a summons, served as a juror, or attended court for prospective jury service commits interference with jury service, a class B misdemeanor.

Id.

I.C. 34-4-29-1 reads as follows:

A person who is dismissed from their employment in violation of I.C. 35-44-3-10 may bring a civil action, within ninety days of their dismissal, against the employer who dismissed him:

(1) To recover the wages he lost as a result of the dismissal; and

(2) To obtain an order requiring reinstatement by the employer.

If the person obtains a judgment against the employer, the court shall award a reasonable attorney's fee to the person's attorney.

Id. ²

A

Call argues that I.C. 34-4-29-1 was not intended by the legislature to be an exclusive remedy for persons terminated from their employment for their compliance with a jury summons; thus, the Starke Circuit Court erred in finding that Call's statutory remedy was exclusive. Call contends that the public policy exception set forth in Frampton v. Central Indiana Gas Co. (1973), 260 Ind. 249, 297 N.E.2d 425, and McClanahan v. Remington Freight Lines (1988), Ind., 517 N.E.2d 390, should apply to at will employees who are terminated for complying with their statutory duty of jury service. Scott Brass counters that neither Frampton nor McClanahan apply to this case and that the remedy provided for in I.C. 34-4-29-1 is exclusive.

Call argues that, absent a clear indication of the legislature's intent to abrogate existing common law remedies, statutory remedies are presumed to supplement common law remedies. Drinkwalter v. Shipton Supply Co., Inc. (1987), 225 Mont. 380, 732 P.2d 1335.

In Indiana, when the legislature enacts a statute which creates a right, which did not exist previously, and prescribes a remedy for the infringement of that right, the statutory remedy is exclusive. Public Service Commission v. City of Indianapolis (1956), 235 Ind. 70, 131 N.E.2d 308; City of Fort Wayne v. Bishop (1950), 228 Ind. 304, 92 N.E.2d 544; Environmental Properties v. City of Fort Wayne (1978), 178 Ind.App. 645, 383 N.E.2d 481; Richmond Power & Light v. Indiana & Michigan Electric Co. (1976), 170 Ind.App. 458, 353 N.E.2d 467. Thus, the critical issue in this case is which came first: the judicially created Frampton-McClanahan public policy cause of action or the statutory cause of action?

McClanahan was not decided until 1988. Therefore, it is necessary to determine whether the Supreme Court created the cause of action in Frampton, or whether Frampton was a case limited to its facts until the Supreme Court expanded upon it in McClanahan. If the former is correct, then the statute is not exclusive. See Drinkwalter, 732 P.2d at 1338. If the latter is correct, then the statute is Call's exclusive remedy. Environmental Properties, 178 Ind.App. at 648, 383 N.E.2d at 484.

Generally, employees who are not employed for a specific duration are presumed to be employees at will whose employment may be terminated by either party at any time and for any reason. Streckfus v. Gardenside Terrace Cooperative, Inc. (1987), Ind., 504 N.E.2d 273. Both parties admit that Call was an at will employee.

In Frampton, an at will employee, was terminated from her employment after she filed a worker's compensation claim against her employer. The Supreme Court held that the employee could bring a claim for retaliatory discharge against an employer if the employee was discharged for exercising a statutorily conferred right. Id., 260 Ind. at 253, 297 N.E.2d at 428.

In 1979, the Third District suggested that a person could maintain an action for retalitory discharge if the employee had been terminated from his employment for exercising a statutory right or refusing to violate a statutory duty. Martin v. Platt (1979), 179 Ind.App. 688, 386 N.E.2d 1026 (citing Nees v. Hocks (1975), 272 Or. 210, 536 P.2d 512; Petermann v. International Brotherhood of Teamsters (1959), 174 Cal.App.2d 184, 344 P.2d 25). That suggestion was confirmed by the First District in Campbell v. Eli Lilly & Co. (1980), Ind.App., 413 N.E.2d 1054.

Judge Neal wrote as follows:

We conclude from Frampton that in order to fall within a recognized exception to the employment at will rule a plaintiff must demonstrate that he was discharged in retaliation for either having exercised a statutorily conferred personal right or having fulfilled a statutorily imposed duty in order to state a claim upon which relief may be granted ...

Campbell at 1061 (emphasis added). ³

The Supreme Court used the rationale of Martin and Campbell in McClanahan v. Remington Freight Lines (1988), Ind., 517 N.E.2d 390. In that case a truck driver was discharged from his employment when he refused to drive the company truck into Illinois because the weight of the truck exceeded the maximum weight limit in Illinois. The Supreme Court held that the truck driver stated a cause of action for wrongful discharge since the truck driver was terminated for fulfilling a statutory duty. Chief Justice Shepard wrote as follows:

We agree with the Court of Appeals that firing an employee for refusing to commit an illegal act for which he would be personally liable is as much a violation of public policy declared by the legislature as firing an employee for filing a workmen's compensation claim. A separate but tightly defined exception to the employment at will doctrine is appropriate under these facts.

Id. at 392 (emphasis added).

Even though a Frampton cause of action was not extended beyond the facts of that case until McClanahan in 1988, Call argues that the cause of action existed in 1973. Call relies upon the observation by Chief Justice Shepard in McClanahan that, not since Frampton had the appellate courts been confronted with a situation where the employee proved that he had been terminated for exercising a statutory right. McClanahan at 392; Call argues that the statement implies that had such a case arisen prior to McClanahan, the extension would have been made earlier.

Scott Brass argues that the Indiana Supreme Court addressed a case where a public policy exception was advanced by one of the litigants and rejected as late as 1986--seven (7) years after I.C. 34-4-29-1 was adopted. See Morgan Drive Away, Inc. v. Brant (1986), Ind., 489 N.E.2d 933. Therefore, Scott Brass argues, the relief which Call seeks to bring was not a common law tort remedy in 1977.

Although the opinion of the Supreme Court in Frampton only addressed discharges in retaliation for the filing of a worker's compensation claim, the court did not hold that only employees discharged under the same circumstances could obtain relief. Furthermore, no Indiana appellate court subsequently interpreting Frampton has restricted that decision in the manner advanced by Scott Brass. See Hamblen v. Danners, Inc. (1985), Ind.App., 478 N.E.2d 926; Rice v. Grant County Board of Commissioners (1984), Ind., 472 N.E.2d 213; Campbell v. Eli Lilly & Co., 413 N.E.2d 1054; Scott v. Union Tank Car Co. (1980), Ind.App., 402 N.E.2d 992; Martin v. Platt, 179 Ind.App. 688, 386 N.E.2d 1026; but cf. Lawson v. Haven Hubbard Homes, Inc. d/b/a Hamilton Grove (1990), Ind.App....