Perkins v. Mem'l Hosp. of S. Bend

Decision Date31 March 2020
Docket NumberSupreme Court Case No. 20S-CT-233
Citation141 N.E.3d 1231
Parties Forrest PERKINS, Appellant (Plaintiff below) v. MEMORIAL HOSPITAL OF SOUTH BEND, Appellee (Defendant below)
CourtIndiana Supreme Court

On Petition to Transfer from the Indiana Court of Appeals No. 18A-CT-1340

Massa, Justice.

Forrest Perkins, who had been an at-will employee working as a police officer, sued Memorial Hospital of South Bend for wrongful termination after it purportedly fired him for stealing food from the cafeteria. Perkins alleges that the true reason for his termination was the adverse testimony he gave at an unemployment compensation appeal hearing on behalf of a former coworker. The trial court, however, granted summary judgment for Memorial, asserting that because Perkins was never actually subpoenaed to testify, the public policy exception to the at-will employment doctrine—which would have barred his firing—did not apply.

Today, we reverse summary judgment and remand. While we hold that testimony compelled by a subpoena or other statutory duty is protected under the public policy exception to at-will employment, we again decline to carve out a new broad exception to the at-will employment doctrine. Perkins was obliged to cooperate with service of process and provide complete and honest testimony on the stand. Consequently, the only remaining question is whether Perkins was—without a paper subpoena—constructively compelled to testify once he was at the hearing. Because honest testimony by witnesses is important to the well-functioning of the state's various adjudicative bodies, a witness generally should not be fired for complying with a hearing officer's instructions. We hold that the record, as currently developed, does not support summary judgment when the hearing officer departs from the regulations by failing to provide a subpoena.

Facts and Procedural History

Forrest Perkins was employed by Memorial Hospital of South Bend for about four years, first as a security officer and then as a police officer for the hospital police department. Before working for Memorial, Perkins served for thirty-two years as a Michigan State Trooper. Both parties acknowledge that Memorial employed Perkins as an at-will employee.

In May 2015, Perkins left work early to testify at an unemployment benefit appeals hearing against Memorial on behalf of former coworker Rick Bradley. Perkins was told a subpoena would be waiting for him at the hearing, and he contends he attended the hearing under the belief that he was being subpoenaed to testify. As a longtime state trooper, Perkins was well aware of his obligation to appear and testify pursuant to routine compulsory process. Five days earlier, Bradley's counsel had requested that the hearing officer issue a subpoena for Perkins as a rebuttal witness and sent a letter notifying Memorial of the request. But once at the hearing, the hearing officer told Perkins that a subpoena "wasn't needed" for him to testify. Appellant's App., p.121. Memorial, however, did not appear to contest Bradley's unemployment claim.

As Bradley still needed to present a prima facie case for unemployment benefits, Perkins provided very limited testimony about a staff meeting he attended. Although Memorial did not contest Bradley's hearing, Craig Whitfield, Perkins's supervisor, suspected that Perkins was attending the unemployment hearing after seeing an email that day on Perkins's cell phone from Bradley's email address with a subject line about the hearing. These suspicions were confirmed after Whitfield drove to the unemployment office and saw Perkins's truck in the parking lot. Whitfield also acknowledged there was no evidence that Perkins was ever disciplined for leaving his shift early.

Despite leaving Bradley's claims uncontested, Memorial requested an audio recording of the unemployment hearing, which Whitfield listened to with an HR manager. A copy of this recording is not part of the record, and the only evidence regarding the hearing in the record is limited deposition testimony from Perkins.

The next month, a cashier reported to Whitfield that Perkins stole gravy from the cafeteria. Although Perkins paid for his omelet, a bottle of water, and a biscuit, he did not tell the cashier that he ladled gravy over his biscuit. According to Memorial, Perkins did not open his Styrofoam container as the signs in the cafeteria instruct patrons to do when they pay the cashier.

Memorial then fired Perkins, maintaining, as it still does, that his employment was terminated for stealing food from the cafeteria in violation of the employer's handbook. Memorial contends this reason "is well-documented, legitimate, and non-discriminatory." Id. , p.52. Before the alleged incident of gravy stealing, however, Memorial concedes that "Perkins did not have any disciplinary complaints and was never written-up for violations of the employee handbook prior to his termination." Id. , p.78.

Perkins sued Memorial, alleging wrongful termination. Memorial moved for summary judgment, arguing that even if Perkins's allegations were true, Memorial could fire Perkins for testifying at an unemployment benefits hearing for a coworker. Because Perkins was not actually and physically issued a subpoena, Memorial reasoned, Perkins's testimony did not fall within the public policy exception to at-will employment. The trial court granted Memorial's motion for summary judgment, concluding that because Perkins was not served with a subpoena, he was not afforded the protections granted by Indiana's at-will employment doctrine. Perkins appealed, and the Court of Appeals affirmed.

We now grant transfer and reverse.

Standard of Review

We review summary judgment de novo, applying the same standard as the trial court: "Drawing all reasonable inferences in favor of ... the non-moving parties, summary judgment is appropriate ‘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.’ " Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C) ). "A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted).

The burden rests initially on the summary-judgment movant to "demonstrate the absence of any genuine issue of fact as to a determinative issue," at which point the burden shifts to the non-movant to "come forward with contrary evidence" showing an issue for the trier of fact. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc. , 644 N.E.2d 118, 123 (Ind. 1994). We limit our review to materials designated at the trial level. Fraternal Order of Police, Lodge No. 73 v. City of Evansville , 829 N.E.2d 494, 496 (Ind. 2005).

Discussion and Decision

Drawing all inferences in Perkins's favor for summary judgment purposes, both parties agree we should accept as true his claim that he was actually fired in retaliation for testimony at the unemployment hearing. Therefore, we must determine whether Perkins could be fired—under the at-will employment doctrine—for this testimony.

"Indiana follows the doctrine of employment at will, under which employment may be terminated by either party at will, with or without reason." Wior v. Anchor Indus., Inc., 669 N.E.2d 172, 175 (Ind. 1996). "The presumption of at-will employment is strong, and we are disinclined to adopt broad and ill-defined exceptions to the employment at-will doctrine." Baker v. Tremco Inc. , 917 N.E.2d 650, 653 (Ind. 2009) (citing Orr v. Westminster Village N., Inc. , 689 N.E.2d 712, 717 (Ind. 1997) ).

Only three exceptions to the doctrine have been recognized by this Court. Id. "First, if an employee establishes that ‘adequate independent consideration’ supports the employment contract, the Court generally will conclude that the parties intended to establish a relationship in which the employer may terminate the employee only for good cause." Orr , 689 N.E.2d at 718 (citing Romack v. Public Service Co. , 511 N.E.2d 1024, 1026 (Ind. 1987). Second, the "public policy" exception protects from termination an employee exercising a clear statutory right or obeying a legal duty. Baker , 917 N.E.2d at 654. "Third, this Court has recognized that an employee may invoke the doctrine of promissory estoppel." Id. (citing Orr , 689 N.E.2d at 718 ).

Both parties agree that Perkins's case should be analyzed under the public policy exception. "[W]e have recognized a public policy exception to the doctrine if a clear statutory expression of a right or a duty is contravened." Baker , 917 N.E.2d at 654 (citing Wior , 669 N.E.2d at 177 n.5 ). A trio of cases decided by this Court explains how the exception works.

In Frampton v. Central Indiana Gas Co. , we held that an employee could not be fired in retaliation for excising her right to file for disability benefits. 260 Ind. 249, 253, 297 N.E.2d 425, 428 (1973). Finding that the statutory language of the disability act barred that firing, we reasoned that if we upheld the retaliatory discharge under the common law at-will employment doctrine, we would open "the door to coercion and other duress-provoking acts." Id. at 252, 297 N.E.2d at 428.

In McClanahan v. Remington Freight Lines, Inc. , we added that the public policy exception includes a "separate but tightly defined exception to the employment at will doctrine" that protects an employee when he is discharged by an employer "for refusing to commit an illegal act for which he would be personally liable."

517 N.E.2d 390, 393 (Ind. 1988). We held that the plaintiff could not be fired for refusing to drive an overweight tractor-trailer through Illinois as he would be personally liable for the violation if caught. Id. "[F]iring an employee for refusing to...

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