Summary
explaining that "[i]n essence, where the legislature has spelled out the public policy and the remedy, the remedy is part of the public policy, and it does not need a common law supplement"
Summary of this case from Patterson v. Toyota Motor Manufacturing, Indiana, Inc. (S.D.Ind. 2005)Opinion
CAUSE NO. NA 99-154-C H/S
August 30, 2000
Bull; Chad E Willits Rendigs Fry Kiely Dennis Cincinnati, OH 45202
Laurence F Alter Alter Alvarez Clayton, MO 63105
ENTRY ON DEFENDANT'S MOTION TO DISMISS COUNT FOUR
Plaintiff Deborah S. Combs was employed by defendant Indiana Gaming Company ("Argosy") as a card dealer. On June 10, 1998, defendant Argosy terminated plaintiff's employment. Plaintiff has sued Argosy for sexual harassment and sex discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq., for retaliation in violation of Title VII, and for wrongful termination in violation of public policy under Indiana law. Plaintiff also has asserted three state law claims against defendant Harlen Hays. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendant Argosy has moved to dismiss plaintiff's state law claim for wrongful termination in violation of public policy. For the reasons stated below, defendant's motion is granted.
Standard of Review
When considering a motion to dismiss a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992).
Dismissal of the plaintiff's claim is proper only where it appears beyond doubt that the plaintiff can prove no set of facts consistent with her complaint that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999), quoting Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989).
Plaintiff's Allegations
Plaintiff alleges that Argosy hired her in November 1996 as a card dealer. During her employment with Argosy, she competently performed her duties and her job performance met the reasonable expectations of Argosy. Plaintiff alleges that defendant Harlen Hayes, another Argosy employee who supervised her, frequently and repeatedly engaged in verbal and physical conduct of an unwanted sexual nature toward her. Plaintiff repeatedly reported defendant Hayes' offensive conduct to her superiors, but Argosy failed to reasonably implement prompt, appropriate, and effective remedial corrective measures.
After plaintiff reported Hayes' offensive conduct, Argosy terminated plaintiff's employment, allegedly in retaliation for her reports and complaints.
Discussion
Count Four of plaintiff's amended complaint alleges: "By discriminating against plaintiff and terminating her employment in retaliation for exercising her statutorily imposed personal right to oppose and report unlawful sex discrimination and sexual harassment, Argosy wrongfully terminated Plaintiff in violation of public policy." Defendant Argosy asserts that this claim must be dismissed because plaintiff has failed to state a claim under Indiana law for wrongful termination in violation of public policy.
There are two forms of employment recognized by Indiana law: employment for a definite or ascertainable term and employment at-will. See, e.g., Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind. 1997). When an employee's employment is at-will, then the employment "is presumptively terminable at any time, with or without cause, by either party." Id. (citing cases).
Indiana courts have recognized a cause of action even for at-will employees, however, if they are discharged for exercising a statutory right or for refusing to participate in an unlawful act for which they would personally be held liable. See Frampton v. Central Indiana Gas Co., 297 N.E.2d 425, 427-28 (Ind. 1973) (employee fired for filing worker's compensation claim); McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392-93 (Ind. 1988) (employee fired for refusing to drive truck carrying excessive load); see also Orr, 689 N.E.2d at 718, citing Wior v. Anchor Industries, Inc., 669 N.E.2d 172, 177 n. 5 (Ind. 1996).
In Count Four, plaintiff relies on the public policy exception. She points out that retaliation against employees for complaining about or opposing unlawful employment discrimination is itself prohibited by federal law. See 42 U.S.C. § 2000e-3(a). State law contains a narrower retaliation provision that prohibits retaliation for filing a complaint with, testifying before, or in any way assisting the Indiana Civil Rights Commission in any matter under investigation by the Commission. Ind. Code § 22-9-1-6(h).
Plaintiff argues that the Indiana courts would apply the public policy exception to her claim.
Plaintiff's argument is similar to one the Seventh Circuit recently rejected in Groce v. Eli Lilly and Co., 193 F.3d 496 (7th Cir. 1999). In that case, the plaintiff claimed that he had been wrongfully discharged in violation of public policy based upon his exercise of rights proscribed by Indiana's Occupational Health and Safety (OSHA) statute, Indiana Code § 22-8-1.1-1, et seq. The plaintiff had complained about a safety violation at his workplace. He had a statutory right to do so under the OSHA statute. He was terminated shortly after he complained about the safety violation.
The Seventh Circuit affirmed summary judgment for the employer on the claim for retaliatory discharge. After reviewing Indiana case law, the court concluded that "the vast body of Indiana law consistently has upheld the vitality of the employment-at-will doctrine, the narrowness of any public policy exception, and the conviction that revision of the long standing at-will doctrine is best left to the Indiana legislature." Id. at 503. The Seventh Circuit also concluded that the Supreme Court of Indiana had recognized only two public policies upon which a claim for retaliatory discharge in violation of public policy may be based: (1) filing a worker's compensation claim, or (2) refusing to commit an illegal act for which the employee would be personally liable. Id. at 502-03. Thus, the court rejected the plaintiff's argument that an Indiana state court would have recognized his retaliatory discharge claim in violation of a public policy based on Indiana's OSHA statute. Id. at 503.
The Seventh Circuit also relied upon the fact that the Indiana legislature had created "a specific statutory remedy for retaliatory discharge for complaining of a health or safety issue." Id. at 503-04. The plaintiff, however, had failed to pursue the remedy provided by the OSHA statute, the statute upon which he relied to support his claim for wrongful discharge in violation of public policy. The plaintiff's failure to pursue the specific remedy provided by the Indiana legislature further supported the Seventh Circuit's conclusion that the Supreme Court of Indiana would not recognize a common law his claim for retaliatory discharge. In essence, where the legislature has spelled out the public policy and the remedy, the remedy is part of the public policy, and it does not need a common law supplement. See id. at 504.
In response to Groce, plaintiff contends that Indiana courts have not expressly limited the public policy exception to an employee's filing of a worker's compensation claim or refusal to commit an illegal act for which the employee would be personally liable. Plaintiff essentially is asking this court to expand Indiana's public policy exception to include a violation of public policy based upon a federal or state anti-discrimination statute. This the court cannot do.
First, the Seventh Circuit's holding in Groce is controlling here. Plaintiff has not pointed to any Indiana state court decision since the Seventh Circuit's opinion in Groce that would undermine the Seventh Circuit's interpretation of Indiana law.
Additionally, plaintiff is attempting to create a cause of action for wrongful discharge in violation of public policy in an area in which the Indiana legislature has already enacted a comprehensive statute providing remedial measures. The Indiana Civil Rights Law prohibits discrimination on the basis of sex, and prohibits at least some forms of retaliation against an employee for participating in the official complaint process. See Ind. Code §§ 22-9-1-3(l), 22-9-1-6(h). It is not at all clear that the Indiana retaliation statute applies to complaints that remain internal, to company supervisors as opposed to complaints to the Civil Rights Commission. However, that is a choice the Indiana legislature made when it wrote the statute.
The Civil Rights Law provides a comprehensive administrative remedial scheme. See Ind. Code § 22-9-1-6(k).
In light of Groce and the legislature's decision about the scope of statutory protection from retaliation, as well as the Supreme Court of Indiana's narrow interpretation of the public policy exception to the employment at-will doctrine, the court finds that plaintiff has failed to state a claim for wrongful discharge under Indiana law.
Conclusion
For the foregoing reasons, defendant Argosy's motion to dismiss is granted, and Count Four of plaintiff's claim is dismissed with prejudice.
So ordered.