Parker v. State

Decision Date11 February 1980
Docket NumberNo. 3-777A172,3-777A172
Citation400 N.E.2d 796
PartiesSilas PARKER, Plaintiff-Appellant, v. The STATE of Indiana; Indiana Department of Administration, Personnel Division; Indiana Department of Public Welfare, Wayne A. Stanton, Administrator, and John D. Kelley, Director, Lake County Department of Public Welfare, Defendants- Appellees.
CourtIndiana Appellate Court

Wendell W. Goad, Merrillville, for plaintiff-appellant.

Theo. L. Sendak, Atty. Gen., David Michael Wallman, Deputy Atty. Gen., Indianapolis, for defendants-appellees.

GARRARD, Presiding Judge.

On June 22, 1976, appellant Silas Parker commenced an action in the Lake County Superior Court in Hammond, Indiana seeking a declaratory judgment and injunctive relief. Parker worked as a caseworker in the Food Stamp Program for the Lake County Department of Public Welfare. In the suit, he contested his compulsory retirement as mandated by IC 4-15-8-2 (1976) which provides,

Sec. 2. (Compulsory retirement) Every state employee which, by IC 1971, 4-13-1, is under the control of the personnel board shall be retired compulsorily on his anniversary date immediately following his attainment of seventy (70) years of age. 1

Parker first began his job with the Lake County Department of Public Welfare on July 1, 1968. He turned seventy on September 15, 1975. In accordance with the above statute, he was informed that he would be retired as of July 1, 1976, the first anniversary date of his employment subsequent to his seventieth birthday. On July 12, 1976, the defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted. Indiana Rules of Procedure, Trial Rule 12(B)(6). After receiving written memorandums supporting each side's position, the trial court granted the motion on March 29, 1977, and this appeal followed.

In contending that the dismissal of his complaint was erroneous, appellant presents four main issues for review: (1) Whether he failed to receive proper statutory notification of his impending mandatory retirement so as to preclude his termination; (2) Whether the trial court erred in not affording him an opportunity to amend his complaint prior to dismissal; (3) Whether the statutory scheme relating to appellant's compulsory retirement violates the equal protection clause of the fourteenth amendment to the U.S. Constitution and article 1, § 23 of the Indiana Constitution; and (4) Whether the same statutory scheme violates the due process clause of the fourteenth amendment to the U.S. Constitution and article 1, § 12 of the Indiana Constitution.

In determining the propriety of a dismissal pursuant to Trial Rule 12(B)(6), we note that under our system of "notice" pleading, the plaintiff is merely required to make a clear and concise statement in order to put the defendant on notice that he has a justiciable claim and is entitled to relief under some legal theory. Roberts v. State (1974), 159 Ind.App. 456, 307 N.E.2d 501; McCarthy v. McCarthy (1971), 150 Ind.App. 640, 276 N.E.2d 891. We must consider whether in the light most favorable to the plaintiff and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim. Needham v. Fred's Frozen Foods, Inc. (1977), Ind.App., 359 N.E.2d 544; Dubois County Machine Co. v. Blessinger (1971), 149 Ind.App. 594, 274 N.E.2d 279. The granting of a 12(B)(6) motion is only appropriate when it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts. State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604; Soltes v. School City of East Chicago (1976), Ind.App., 344 N.E.2d 865. With this standard of review in mind, we now proceed to the merits of the appeal.

Regarding the notice issue, IC 4-15-8-4(a) (1976) provides,

Sec. 4. (Notification of Employee) (a) In order for the retirement to be compulsory the personnel director must notify each employee and the appointing authority or his designee of the state agency in which the employee is working of the employee's compulsory retirement at least ninety (90) days prior to the effective date of the employee's retirement.

In his memorandum in opposition to the state's motion to dismiss, Parker stated that he did receive notice of the required July 1, 1976 termination in a letter dated May 13, 1975, which also advised him that the notice of mandatory retirement would follow approximately ninety days prior to the July retirement date. The state admitted in its answer that this later notice was not sent. Furthermore, Parker indicated in this same memorandum, as well as in his complaint and in his motion to correct errors, that sometime nearer to the termination date (the exact time is not given), John D. Kelley, Director of the Lake County Department of Public Welfare, advised appellant's immediate supervisor, Glen Rankin, that appellant would not be allowed to work beyond June 30, 1976. This information was then relayed verbally by Rankin to appellant. Nonetheless, it is appellant's position that since he was not personally notified in writing as promised in the May 13 letter, there has not been sufficient adherence to the statutory notification requirement and his involuntary retirement is precluded.

We believe the statutory requirement was met. Although the state did not provide the follow-up letter referred to in the 1975 letter, there was nothing equivocal about the proposed compulsory retirement of Parker. Nor has Parker asserted that he was prejudiced in fact by the failure.

Appellant next claims that the trial court erred in not affording him a chance to amend his complaint before dismissing it. Trial Rule 12(B)(8) provides in pertinent part, When a motion to dismiss is sustained for failure to state a claim under subsection (B)(6) of this rule the pleading may be amended once as of right pursuant to Rule 15(A) within ten (10) days after service of notice of the court's order sustaining the motion and thereafter with permission of the court pursuant to such rule.

It is apparent from the rule that the opportunity to amend the complaint as a matter of right pursuant to TR 12(B)(8) accrues after the trial court has sustained a party's motion to dismiss, rather than before. State ex rel. Young v. Noble Circuit Court (1975), 263 Ind. 353, 332 N.E.2d 99; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695. Here, there is nothing in the record whatsoever indicating that appellant ever attempted to file an amended complaint. As we noted in Brown v. Gardner (1974), 159 Ind.App. 586, 308 N.E.2d 424 where we upheld the granting of a 12(B)(6) motion,

If the party opposing the motion desires to present an avoidance of the statute, he may, under TR. 12(B) offer to the court matters outside the pleading. If the court permits their consideration, the proceeding will then be treated as one for summary judgment. As an alternative, the party may exercise his right to amend in the event the motion is sustained. The appellant here did neither, and the decision of the trial court was proper.

Id. at 592, 308 N.E.2d at 428-29. Thus, in order to take advantage of our trial rules in the case at bar Parker should have moved the court for leave to amend his complaint within the prescribed ten day period. His failure to do so prevents him from complaining at this time.

We now turn to Parker's contention that the statute mandating his retirement, IC 4-15-8-2 (1976), violates the equal protection guarantee of the fourteenth amendment and the "equal privileges" guarantee found in article 1, § 23 of the Indiana Constitution. 2 It is well established that the rights intended to be protected under each of these constitutional provisions are identical. Sidle v. Majors (1976), 264 Ind. 206, 341 N.E.2d 763; Haas v. South Bend Community School Corp. (1972), 259 Ind. 515, 289 N.E.2d 495. Therefore, we will treat them together in addressing Parker's argument. His equal protection claim is based on the theory that the statute creates an impermissible classification based on age, that it infringes on an alleged fundamental right to work, and that mandatory retirement deprives him of a fundamental right to life. In sustaining the 12(B)(6) motion, the trial court used the "rational basis" standard and found that the statute bore "a rational relationship to a proper state objective."

Parker asserts that the court erred in granting the dismissal because he should have been allowed to introduce evidence showing that the "strict scrutiny" test is the proper one to utilize in evaluating his constitutional attack and that the state should be required to demonstrate a "compelling interest" before the legislation can be upheld. Brown v. State (1975), 262 Ind. 629, 322 N.E.2d 708; Indiana High School Athletic Association v. Raike (1975), 164 Ind.App. 169, 329 N.E.2d 66. In the alternative Parker contends that even if the rational basis test is appropriate under these circumstances, he still should have been permitted to present evidence proving that there is no legitimate state objective underlying the statute, that the statutory classification is both overinclusive and underinclusive, that the state has not utilized a reasonable means to accomplish the purpose behind the legislation, that the law has the effect of excluding so few employees who are in fact unqualified as to render age seventy a criterion wholly unrelated to the state's objective, and that the statute is in fact being arbitrarily applied.

Constitutional challenges to mandatory retirement plans like the one here are not new. As one authority has recently remarked,

The argument that a public employee may not constitutionally be forced to retire on the basis of his age has been almost uniformly rejected by the courts, . . . . Mandatory retirement plans or programs based solely on age considerations have thus been upheld in cases involving high school...

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