McClanahan v. Remington Freight Lines, Inc.

• Decision Date: 30 October 1986
• Docket Number: No. 2-685-A-184,2-685-A-184
• Citation: 498 N.E.2d 1336
• Parties: 105 Lab.Cas. P 55,611, 1 IER Cases 974 John H. McCLANAHAN, Appellant (Plaintiff Below), v. REMINGTON FREIGHT LINES, INC., and Richard Barbour, Individually and as Agent for Remington Freight Lines, Inc., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1336

498 N.E.2d 1336

105 Lab.Cas. P 55,611, 1 IER Cases 974

John H. McCLANAHAN, Appellant (Plaintiff Below), v. REMINGTON FREIGHT LINES, INC., and Richard Barbour Individually and as Agent for Remington Freight Lines, Inc., Appellees (Defendants Below).

No. 2-685-A-184.

Court of Appeals of Indiana Second District.

Oct. 30, 1986.

Rehearing Denied Dec. 2, 1986.

Phillip E. Burchett, Margaret Ann Nolan, Bartlett & Robb, Lafayette, for appellant.

Joseph T. Bumbleburg, Jeffrey J. Newell, Ball, Eggleston, Bumbleburg & McBride, Lafayette, for appellees.

SULLIVAN, Judge.

John H. McClanahan (McClanahan) appeals the trial court's denial of his motion for partial summary judgment and the granting of summary judgment in favor of defendants Remington Freight Lines, Inc. (Remington) and Richard Barbour (Barbour).

We affirm in part, reverse in part and remand for further proceedings.

The essential facts are undisputed. McClanahan was hired as a truck driver by Remington in November of 1981. There was no set term of employment. In March of 1982, McClanahan picked up a load in New York which was destined for Minnesota via interstate highway through Illinois. At the time McClanahan picked up the load, federal statute permitted loads of up to 80,000 pounds on interstate highways. However, there was in full force and effect in Illinois a state statute imposing a weight limit lower than that permitted by federal statute. McClanahan's load was below the federal limit but exceeded the Illinois limit. McClanahan refused to take the load through Illinois and his employment with Remington ceased.

McClanahan subsequently applied for and was denied unemployment benefits. He appealed the denial and a hearing was held before an appeals referee of the Indiana Employment Security Board. Remington was represented at the hearing by its safety director, Barbour. Remington asserted that McClanahan's refusal to carry the load constituted a voluntary resignation of his employment pursuant to the terms of its driver's handbook which McClanahan admitted receiving. The appeals referee found that McClanahan was discharged for refusing to commit an illegal act, such discharge was not for just cause despite the rule contained in the driver's handbook, and that therefore McClanahan was entitled to unemployment benefits. Remington did not appeal the decision of the appeals referee. Subsequently, McClanahan brought this action against Remington and Barbour for retaliatory discharge.

McClanahan asserts that there is no genuine issue of material fact. He therefore necessarily argues that the court misapplied the law.

The primary issues presented on appeal are:

(1) Whether McClanahan's allegation that he was discharged for refusing to perform an illegal act states a cause of action under Indiana law;

(2) Whether relitigation of the reasons for McClanahan's discharge is barred under the doctrine of collateral estoppel.

Before addressing these issues, we must first dispose of certain procedural issues presented by Remington and Barbour. Remington and Barbour argue that McClanahan has failed to make his appeal in a timely fashion. We disposed of this contention in denying a Motion to Dismiss the Appeal on January 23, 1986. We determined that McClanahan's motion to correct errors was timely filed.

Remington and Barbour also argue that McClanahan has filed an improper record. They point to certain documents omitted from the record and to the fact that the clerk's certificate at the end of the record is dated prior to the judge's certificate.

Indiana Appellate Rule 7.2(B) states:

"Neither party shall request parts of the record or a transcript of the proceedings which are not needed for the issues to be asserted upon the appeal."

The documents omitted by McClanahan, and supplied by Remington and Barbour in an appendix to their appellee's brief, are not necessary to a resolution of the issues presented on appeal.

With reference to certification, the portions of the record which are necessary for resolution of the issues before us do not require certification by the judge. The requirement of a judge's certificate, if required at all, seems to be restricted to a certification of the transcript of the evidence. Kroslack v. Estate of Kroslack (1986) 3d Dist.Ind.App., 489 N.E.2d 650, trans. pending; Paxton v. Paxton (1981) 2d Dist.Ind.App., 420 N.E.2d 1346; State ex rel. O'Neal v. Cros (1978) 1st Dist., 177 Ind.App. 68, 378 N.E.2d 10; See 4A Indiana Practice, Appellate Procedure Sec. 43 at p. 81 (Bagni, Giddings & Stroud 1979 ed.). In any event, it is the clerk's certificate which is indispensable and which authenticates and verifies the entire record of proceedings. 4A Indiana Practice, Appellate Procedure Sec. 45 (Bagni, Giddings & Stroud 1979 ed.). Accordingly, the discrepancy in dates between the two certificates is not beneficial to Remington and Barbour.

Thus, Remington and Barbour's allegations regarding the record do not require a dismissal of McClanahan's appeal nor do they prevent us from reaching the substantive issues presented. We move now to those issues, keeping in mind the appropriate standard of review. ¹

I

We first address the question whether McClanahan's allegation that he was discharged for refusing to perform an illegal act states a cause of action. Remington asserts, and McClanahan does not disagree, that McClanahan was an employee at will.

The general rule in Indiana is that an employee at will may be discharged with or without cause at any time by his employer. Martin v. Platt (1979) 3d Dist., 179 Ind.App. 688, 386 N.E.2d 1026. However, the Indiana Supreme Court carved out an exception to the general rule in Frampton v. Central Indiana Gas Co. (1973) 260 Ind. 249, 297 N.E.2d 425. Our task is to determine whether the discharge of McClanahan by Remington falls within the Frampton exception.

The plaintiff in Frampton had injured her arm in the course of her employment. She filed a claim for workmen's compensation and received a settlement. Within a month after receiving her workmen's compensation settlement, the plaintiff's employment was terminated. Her employer gave no reasons for her discharge. The plaintiff brought suit against her employer, alleging that the sole reason for her discharge was her filing of the compensation claim. The Supreme Court determined that the plaintiff had stated a cause of action despite the fact that she was an employee at will "[U]nder 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, supra, 297 N.E.2d at 428.

Remington and Barbour argue that the Frampton exception is applicable only in cases where the employee has been discharged for exercising a statutorily conferred right and that because McClanahan has not alleged that he was exercising a statutory right, he cannot fall within the Frampton exception. We do not agree. If, as Frampton clearly holds, an employee cannot be discharged solely for exercising a statutory right, logic and justice compel us to hold that an employee cannot be discharged solely for refusing to breach a statutorily imposed duty. To say that an employee discharged for doing what the law permitted is entitled to greater protection than an employee discharged for doing what the law required would defy common sense. In fact, the employee discharged for refusing to breach a statutory duty should be entitled to even greater protection than the employee discharged for exercising a statutory right. While the individual choosing not to exercise a statutorily conferred right suffers no consequence, the individual choosing to breach a statutory duty is subject to sanctions imposed by the state.

In this case, if McClanahan had taken the overweight load into Illinois he would have been in violation of Illinois law and subject to a fine. Ill.Ann.Stat. Ch. 95 1/2, Sec. 15-101 (Smith-Hurd 1971). Additionally, if his overweight vehicle had caused any damage to the highway or highway structures in Illinois, he could have been held individually liable for the cost of repair. Ill.Ann.Stat. Ch. 95 1/2, Sec. 15-318 (Smith-Hurd Supp.1986). The possibility of these sanctions lends support to our conclusion that the Frampton exception applies to the facts of this case. We therefore hold that by alleging that Remington discharged him solely for refusing to perform an illegal act, McClanahan has stated a cause of action.

We find additional support in this respect in case law subsequent to the Frampton decision. In Campbell v. Eli Lilly & Co. (1980) 1st Dist.Ind.App., 413 N.E.2d 1054, trans. denied (1981) Ind. 421 N.E.2d 1099, the First District of this court determined that the Frampton exception applied to employees discharged for fulfilling a statutorily imposed duty as well as to those discharged for exercising a statutorily conferred right. Id. at 1061. In Perry v. Hartz Mountain Corp. (1982) S.D.Ind., 537 F.Supp. 1387, the plaintiff alleged that he had been discharged for refusing to continue his participation in an anticompetitive conspiracy. The U.S. District Court found that the employee's allegation stated a valid cause of action under Frampton and Campbell. Id. at 1389. ²

The authorities which Remington and Barbour cite in support of their narrow reading of Frampton are distinguishable. In Martin v. Platt, supra, 386 N.E.2d 1026, the plaintiff employees alleged that they had been discharged for reporting that their superior was receiving kick-backs from suppliers. The Third District of this court found that the employees could not bring an action for retaliatory discharge. While the Martin plaintiffs' reporting of their supervisor's illegal activities may have been desirable from a public policy standpoint, it was not mandated by statute. In this case, McClanahan's refusal to perform, which h...