Coutee v. LAFAYETTE NEIGHBORHOOD HOUSING
| Decision Date | 05 August 2003 |
| Docket Number | No. 79A04-0210-CV-513.,79A04-0210-CV-513. |
| Citation | 792 N.E.2d 907 |
| Parties | Dege R. COUTEE, Appellant-Plaintiff, v. LAFAYETTE NEIGHBORHOOD HOUSING SERVICES, INC., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Michael L. Schultz, Laudig George Rutherford & Sipes, Indianapolis, IN, Attorney for Appellant.
Eric D. Johnson, Marcia A. Mahoney, Kightlinger & Gray, LLP, Indianapolis, IN, Attorneys for Appellee.
After Dege R. Coutee was fired from her employment at Lafayette Neighborhood Housing Services, Inc. ("LNHS"), she sued and alleged that she was unlawfully discharged in retaliation for reporting what she believed to be a misuse of public resources and that her termination violated IC 22-5-3-3, Indiana's whistle-blower statute. She appeals the trial court's grant of summary judgment to LNHS and raises three issues, which we consolidate and restate as follows:
I. Whether her common law claim for retaliatory discharge falls within Indiana's public policy exception to the employment at-will doctrine.
II. Whether a management style that results in high employee turnover constitutes "a misuse of public resources" within the meaning of IC 22-5-3-3.
We affirm.
Congress's 1978 Neighborhood Reinvestment Corporation Act established a not-for-profit corporation called Neighborhood Reinvestment Corporation ("NRC"), authorizing it "to receive and expend Federal appropriations and other public and private revenues to conduct a variety of programs designed primarily to revitalize older urban neighborhoods by mobilizing public, private, and community resources at the neighborhood level." 24 C.F.R. § 4100.1(b). NRC provides funding to a number of housing agencies throughout the United States, including LNHS, a private not-for-profit partnership, whose purpose is "to renew pride and confidence in neighborhoods; promote reinvestment in neighborhoods; and provide decent, affordable housing for low-to-moderate income persons, in cooperation with residents, the business community, local government, and other interested persons in order to strengthen neighborhoods and prevent deterioration by stabilizing and improving property values." Appellant's Appendix at 113. LNHS receives a portion of its funding from NRC in the form of capital grants, intended for use as working capital, and expendable grants, intended for use in operating and program costs. Appellant's Brief at 17-18.
On November 22, 1996, Patricia Stephenson ("Stephenson"), LNHS Executive Director since 1988, hired Coutee as Property Manager for LNHS. Shortly after she began, Coutee briefly met Debra Scott, an employee of NRC, when Scott was visiting the LNHS facility for one of NRC's reviews of LNHS. Scott noted to Coutee her observation that LNHS seemed to have an unusually high employee turnover rate and rhetorically wondered why that was so. As a new employee, Coutee had no specific answer to Scott's comments.
Over time, Coutee became frustrated and upset with Stephenson's management of LNHS, which Coutee felt led to employee turnover and employee dissatisfaction. On June 12, 1998, Coutee wrote to Scott as follows:
On July 6, 1998, Stephenson learned about Coutee's letter to Scott. Thereafter, Stephenson prepared and presented Coutee with a Corrective Action Form, in which Stephenson identified four incidents in which Coutee allegedly displayed "unwillingness to cooperate with management of Lafayette NHS," including the letter to Scott. Appellant's Appendix at 73-74. Coutee refused to discuss the Corrective Action Form and stated that she would only communicate with Stephenson in writing. At that point, Stephenson gave Coutee the option of resigning or being terminated. Coutee refused to speak with Stephenson, and Stephenson terminated Coutee.
Coutee filed a complaint alleging a common law retaliatory discharge claim and a violation of IC 22-5-3-3, Indiana's whistle-blower statute. See Appellant's Appendix at 130. LNHS filed a motion for summary judgment, which the trial court granted following a hearing. Coutee now appeals.
Summary judgment is appropriate only if the "designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). The party moving for summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Markley Enters., Inc. v. Grover, 716 N.E.2d 559, 564 (Ind.Ct.App. 1999). Only if the movant sustains this burden does the burden shift to the opponent to set forth specific facts showing that there is a genuine issue of material fact. Id. On appeal of trial court's decision on a motion for summary judgment, we apply the same standard as the trial court and construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party. Id. at 563-64. The party that lost in the trial court has the burden of persuading this court that the trial court erred. Id. at 564.
Initially, we address Coutee's common law retaliatory discharge claim against LNHS. In so doing, we recognize that her statement of issues does not expressly challenge the trial court's summary judgment dismissal of this claim; however, because she broaches the subject of retaliatory discharge in her argument, Appellant's Brief at 23-27, we conclude that discussion of such claim is warranted.
Indiana law provides that if there is no definite or ascertainable term of employment, then the employment is at-will, and is presumptively terminable at any time, with or without cause. Id. at 564; see also McGarrity v. Berlin Metals, Inc., 774 N.E.2d 71, 76-77 (Ind.Ct.App.2002),
trans. denied (absent set term of employment, employment relationship is at-will).
Our supreme court has recognized only three exceptions to the employment-at-will doctrine. First, if an employee establishes that "adequate independent consideration" supports the employment contract, then the parties are considered to have intended to establish a relationship in which the employer may terminate the employee only for good cause. Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 718 (Ind.1997). For example, adequate independent consideration is provided when the employer is aware that "the employee had a former job with assured permanency" and "the employee was only accepting the new job upon receiving assurances the new employer could guarantee similar permanency," or when the employee entered into a settlement agreement releasing the employer from liability on an employment-related claim against the employer. Id.
Second, a public policy exception to the employment-at-will doctrine exists if a clear statutory expression of a right or duty is contravened, for example when an employee is discharged for filing a worker's compensation claim, Frampton v. Cent. Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), or when an employee is discharged for refusing to commit an illegal act for which he would be personally liable, McGarrity, 774 N.E.2d at 76.
Third, our supreme court recognized that, in certain instances, an employee may invoke the doctrine of promissory estoppel. To do so, the employee must assert and demonstrate that the employer made a promise to the employee, that the employee relied on that promise to his detriment, and that the promise otherwise fits within the Restatement test for promissory estoppel. Orr, 689 N.E.2d at 718 (citing Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118, 121 (Ind. 1995)) (adopting RESTATEMENT (SECOND) OF CONTRACTS § 90(1) (1981)).
In this case, Coutee's argument focuses only on the causation element of her retaliatory discharge claim, arguing that her letter to Scott was the motivating factor that caused LNHS to terminate her employment. However, she neither addresses the matter of Indiana's employment-at-will doctrine nor expressly identifies under which of the recognized exceptions to the employment-at-will doctrine her common law claim falls. To the extent that she claims that her termination violated public policy because it was in retaliation for exercising a statutory right to "blow the whistle" on LNHS, our General Assembly legislated this protection in IC 22-5-3-3, which established the right of certain employees to report employer misconduct without retaliation.1
Here, the trial court determined, "[I]f plaintiff has a cause of action, it is under the statute, not the common law." Appellant's Appendix at 11. We agree and affirm the trial court's grant of summary judgment to LNHS on Coutee's common law claim.
Turning to Coutee's statutory claim, IC 22-5-3-3 provides in pertinent part:
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