Ogden v. Robertson
| Citation | 962 N.E.2d 134 |
| Decision Date | 21 February 2012 |
| Docket Number | No. 49A05–1101–CT–45.,49A05–1101–CT–45. |
| Parties | Paul K. OGDEN, Appellant–Plaintiff, v. Stephen ROBERTSON, et al., Appellees–Defendants. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Adam Lenkowsky, Roberts & Bishop, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.
Appellant–Plaintiff, Paul K. Ogden (Ogden), appeals the trial court's summary judgment in favor of Appellees–Defendants, Stephen Robertson, et al. (Robertson), with respect to Ogden's wrongful termination claim.1
We affirm.
Ogden raises four issues on appeal, three of which we find dispositive and restate as follows:
(1) Whether Ogden's memorandum in which he raised legal violations, a hostile work environment, and mismanagement was protected speech under the Indiana Constitution;
(2) Whether Ogden was entitled to due process protections under State personnel policy and Executive Order 05–14; and
(3) Whether the trial court had subject matter jurisdiction over Ogden's claim that he was wrongfully terminated from his employment.
On November 6, 2006, Ogden was hired to be a Division Manager at the Title Division of the Indiana Department of Insurance (IDOI). For State personnel purposes, the position was classified as a grade Executive Broad Band (EXBB) position. The EXBB job classification includes positions such as Directors, Department Heads, and Agency Heads. At the time Ogden was hired, James Atterholt (Commissioner Atterholt) was the Commissioner of the IDOI, and Carol Mihalik (Mihalik) was a Chief Deputy Commissioner and head of the Consumer Protection Unit (CPU). Organizationally, the Title Division was a part of the CPU, and Ogden reported to Mihalik.
Between three to six months into his employment, Ogden began verbalizing frustrations to Commissioner Atterholt regarding Mihalik's supervision. Ogden told Commissioner Atterholt that Mihalik exhibited wild mood swings, was forgetful, had mental health problems, and had trouble focusing on issues the title managers brought to her attention. Ogden also complained that Mihalik was a poor manager and frequently created obstacles to his work.
In one meeting between Ogden and Commissioner Atterholt, they discussed the preparation of insurance bulletins, which are bulletins that the IDOI uses to convey its policy decisions and interpretations to its regulated community. Ogden informed Commissioner Atterholt that Mihalik had told him that Commissioner Atterholt did not want to issue insurance bulletins. Commissioner Atterholt denied such statements, and Ogden began to work on developing bulletins after the meeting. However, Commissioner Atterholt and Ogden had two different interpretations of their conversation regarding the bulletins. Commissioner Atterholt thought that Ogden was getting a consensus from the Title Division regarding the need for bulletins, while Ogden thought that Commissioner Atterholt had told him to work around Mihalik to develop bulletins. Ogden drafted bulletins and sent them to the title industry, which caused confusion because the industry leaders believed that the draft bulletins would eventually become the final bulletins.
When Mihalik discovered that she had not seen the draft bulletins, she became concerned and wrote Ogden a “counseling letter” on September 12, 2007. In the counseling letter, Mihalik claimed that Ogden had violated IDOI policies in drafting the bulletins and reminded him that he should not disseminate draft title insurance bulletins to the industry unless she and Commissioner Atterholt had approved the bulletins. She intended the letter as a “heads up as to certain behaviors so that [they] could talk about it and get him back on track,” rather than as a disciplinary measure. (Appellant's App. p. 173). Accordingly, Mihalik filed the letter in a personal fact file she kept for each employee, in which she saved employee information to refresh her memory when it came time to complete performance appraisal reports. She did not give the letter to the State Personnel Department to be included in Ogden's official personnel file.
On September 14, 2007, Ogden met with Joyce Crull (Crull) and Nancy Tunget (Tunget) of the State Personnel Department to file a formal complaint alleging that Mihalik had committed personnel and legal violations, misused the title insurance dedicated fund, and created a hostile work environment in the CPU. Crull and Tunget informed Ogden that they would conduct an investigation and interview the employees of the CPU on a day when Mihalik was out of the office. In the meantime, they instructed Ogden to start collecting specific information regarding the alleged violations.
Subsequently, in a letter dated September 17, 2007, Ogden submitted a response to Mihalik's counseling letter in which he denied that he had violated any internal procedural policies. Ogden also, in a memorandum dated the same day, made a formal request to Commissioner Atterholt that he remove the Title Insurance Division from the CPU so that the Division would operate under a different Chief Deputy. Ogden's memorandum outlined 35 reasons for his request, including allegations of Mihalik's poor management, vindictiveness towards employees, misuse of dedicated funds, violation of personnel rules, and knowing publication of false regulatory action data on the IDOI website. Ogden closed his letter stating:
For the foregoing reasons I would respectfully request that the Title Insurance Division be moved out of the [CPU], effective immediately. The impending move to the first floor, which would otherwise result in the [CPU] being divided into two floors, provides the perfect opportunity to make such a structural change to the management of the Department. Further, I would ask you to counsel [Mihalik] and others that they are not to retaliate, in any fashion, against me or any other employee, for my making this formal request.
Later in the day on September 17, 2007, IDOI General Counsel Doug Webber (Counsel Webber) told Ogden to come to the third floor conference room for a mandatory pre-deprivation meeting. Before Counsel Webber and Ogden reached the meeting, Counsel Webber informed Ogden that the decision had already been made to terminate Ogden if he did not resign. When Ogden arrived, there were four people in attendance at the meeting: Commissioner Atterholt, Counsel Webber, Mihalik, and Tunget. Counsel Webber presented Ogden with two letters—one labeled resignation and one labeled termination—and offered Ogden the choice as to which letter to sign. Ogden asked what he had done, and Counsel Webber responded that he had been “out of line” when he sent his memorandum requesting Commissioner Atterholt to reorganize the Division (Appellant's App. p. 290). Commissioner Atterholt had interpreted Ogden's memorandum as an ultimatum and was not willing to restructure IDOI in order to move the Title Insurance Division. Also during the meeting, Ogden spoke with Tunget alone and asked her whether the investigation of Mihalik would continue if he resigned. She responded that it would not continue because complaints could only be filed by employees, and he would no longer be an employee if he resigned or was terminated. Following his conversation with Tunget, Ogden agreed to resign. When he returned to his office, Ogden discovered that the hard drive for his computer had been removed during the pre-deprivation meeting.
On February 20, 2008, Ogden filed a Complaint against the IDOI, Commissioner Atterholt, and Mihalik (collectively, the IDOI defendants), alleging violations of the First and Fourteenth Amendments of the United States Constitution; Article I, section 9 of the Indiana Constitution; the Whistleblower Law (WBL); Indiana Code § 4–15–10–5; and state due process. 2 Ogden also alleged that the IDOI defendants had intentionally caused him emotional distress. Because some of the allegations arose under federal law, the IDOI defendants removed the case to the United States District Court. The district court dismissed Ogden's First Amendment claims on the premise that Ogden had acted as an employee rather than as a citizen when he presented Commissioner Atterholt with his memorandum. The district court also declined to exercise its supplemental jurisdiction to rule on the state law claims. The Seventh Circuit Court of Appeals affirmed the district court's ruling and clarified that the district court had not ruled on Ogden's due process claim under state law. The seventh circuit remanded all of Ogden's state law claims back to the trial court.
Upon remand, on May 17, 2010, both Ogden and the IDOI defendants filed motions for summary judgment. On January 5, 2011, the trial court granted summary judgment to the IDOI defendants, finding that the WBL provided no private cause of action for which Ogden could seek relief through a civil lawsuit, that Ogden's September 17, 2007 memorandum was not protected speech under Article I, section 9 of the Indiana Constitution, and that the same memorandum was not the motivating factor in his forced resignation.
Ogden now appeals. Additional facts will be provided as necessary.
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Warren v. Warren, 952 N.E.2d 269, 269 (Ind.Ct.App.2011). Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. In doing so, we consider all of the designated...
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