RILEY, Judge.
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.
We affirm.
Ogden raises four issues on appeal, three of which we find dispositive and restate as follows:
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
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:
(Appellant's App. p. 187).
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
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.
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 evidence in the light most favorable to the non-moving party. Id. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. The grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.
First, Ogden asserts that the IDOI defendants violated his right to free speech guaranteed by Article I, section 9 of the
Based on this premise, Indiana courts have employed a two-step analysis when addressing Art. I, § 9 claims. Blackman v. State, 868 N.E.2d 579, 584 (Ind.Ct.App.2007), trans. denied. First, we must determine whether the state action has restricted a claimant's expressive activity. Id. at 584-85. Second, if it has, we must decide whether the claimant's restricted activity constituted an "abuse" of the right to speak. Id. at 585. Generally, when we review the State's determination that a claimant's expression was an abuse of the right of free speech under the Indiana Constitution, we need only find that the determination was rational. Id. If a claimant demonstrates that the right to speak clause is implicated, he or she retains the burden of proving that the State could not reasonably conclude that the restricted expression was an "abuse." Whittington v. State, 669 N.E.2d 1363, 1369 (Ind.1996).
However, if the expressive activity is political in nature, the State must demonstrate that it did not materially burden the claimant's opportunity to engage in political expression. Blackman, 868 N.E.2d at 585. "Expressive activity is political... if its point is to comment on government action, whether applauding an old policy or proposing a new one, or opposing a candidate for office or criticizing the conduct of an official acting under the color of law." Whittington, 669 N.E.2d at 1370. In contrast, where an individual's expression focuses on the conduct of a private party—including the speaker himself or herself—it is not political. Id. If the expression, viewed in context, is ambiguous, a reviewing court should find that the claimant has not established that it was political and should evaluate the constitutionality of any state-imposed restriction of the expression under a rationality review. Id. Once a claimant succeeds in demonstrating that his or her expression was political, the State may demonstrate that its action did not impose a material burden on the expression if either the "magnitude of the impairment" was slight or the expression threatened to inflict "particularized harm" analogous to tortious injury on readily identifiable private interests. See id.
Although we have never directly addressed the application of Art. I, § 9 within the context of a termination of employment before, we conclude that our analysis should follow the general two-step analysis for Art. I, § 9 claims. However, in spite of our adoption of Ogden's suggested standard of review, we cannot agree that his speech was protected under Art. I, § 9. Because Ogden's speech was addressed to the State rather than a private individual and commented on the State actor's actions, we conclude that his speech was political. We determine, though, that the State's request that Ogden resign only slightly impaired his expression, and therefore was not material,
Next, Ogden argues that the IDOI defendants wrongfully deprived him of the due process he should have received under State personnel policy and Executive Order 05-14 (EO 05-14). State personnel policy establishes that
(Appellant's App. p. 476). According to Ogden, he was protected by this policy as a non-merit employee with complaint rights under EO 05-14. Pursuant to EO 05-14:
EO 05-14. In response, the IDOI defendants argue that Ogden was not protected by EO 05-14 because Ogden's job position was classified as EXBB, which, according to the State, was a subclassification of the ESM category.
Finally, Ogden disputes the trial court's determination that it did not have subject matter jurisdiction to hear Ogden's claims under the WBL or under common law. This issue has multiple parts. First, the trial court concluded that the WBL does not create a private right of action and that, even if it does, Ogden did not properly exhaust his administrative remedies as required under the WBL before seeking judicial review. Second, the trial court concluded that Ogden does not have a cause of action under common law. We will address the issue of exhaustion of administrative remedies under the WBL and Ogden's common law claim, but we will not address the issue of whether the WBL creates a private right of action, as we determine that Ogden improperly failed to exhaust his administrative remedies.
The WBL is codified at I.C. § 4-15-10-4 and provides that:
The provision at issue here is section (c), which provides for an administrative appeals process if an employee is disciplined for blowing the whistle. Ogden argues that because the language merely provides that an employee "is entitled" to the appeals process, the appeals process is not a mandatory pre-requisite to judicial review. In response, the IDOI defendants claim that because the statute specifies an administrative remedy, that remedy is the exclusive remedy and must be exhausted prior to judicial review.
We acknowledge that there is a strong bias in our case law in favor of the requirement that administrative remedies be exhausted. Koehlinger v. State Lottery Com'n of Indiana, 933 N.E.2d 534, 538 (Ind.Ct.App.2010), trans. denied. The objective of such a requirement is "to avoid collateral, dilatory action, ensure the efficient, uninterrupted progression of administrative proceedings and the effective application of judicial review, and provide an agency with an opportunity to correct its own errors and to compile a factual record as necessary for judicial review." Id. Accordingly, there is a basic principle of Indiana administrative law that a claimant who has an available administrative remedy must exhaust that administrative remedy prior to seeking judicial review. Dennis v. Bd. of Public Safety of Fort Wayne, 944 N.E.2d 54, 60 (Ind.Ct.App. 2011).
However, there are exceptions to the exhaustion requirement. For instance, a party is excepted from the requirement when the remedy is inadequate or would be futile, or when some equitable consideration precludes application of the rule. Smith v. State, 701 N.E.2d 926, 931 (Ind.Ct.App.1998), trans. denied. To prevail upon a claim of futility, "one must show that the administrative agency was powerless to effect a remedy or that it would have been impossible or fruitless and of no value under the circumstances." Id. (quoting Indiana State Bldg and Constr. Trades Council v. Warsaw Cmty. School Corp., 493 N.E.2d 800, 806 (Ind.Ct. App.1986)). The exhaustion requirement will be relaxed when there is grave doubt as to the availability of the administrative remedy. Smith, 701 N.E.2d at 931.
Because we have previously recognized that it is a basic principle of Indiana law that a claimant who has an available administrative remedy must exhaust that administrative remedy before seeking judicial review, we conclude that the language "is entitled" does not indicate that administrative review is only a permissive prerequisite to judicial review. See Dennis, 944 N.E.2d at 60. Nor do we find merit in Ogden's argument that his claim qualifies as an exception to the exhaustion requirement due to its complex nature. We cannot see how his claim is different than any other claim that could be filed under the WBL. The legislature made it clear that it viewed the administrative appeals process as capable of handling such claims when it provided for such a remedy in the WBL.
Alternatively, Ogden claims that Cantrell v. Morris, 849 N.E.2d 488, 495 (Ind. 2006) and Baker v. Tremco, 917 N.E.2d 650, 654 (Ind.2009) established that when an employee is discharged solely for exercising a statutorily conferred right, an exception
Indiana follows the doctrine of employment at will, under which employment may be terminated by either party at will, with or without a reason. Baker, 917 N.E.2d at 653. The presumption of employment at will is strong, and Indiana courts have been disinclined to adopt broad and ill-defined exceptions to the doctrine. Id. Nevertheless, this court has recognized three exceptions. Id. First, if an employee establishes that "adequate independent consideration" supports the employment contract, the court will generally conclude that the parties intended to establish a relationship in which the employer may terminate the employee for good cause. Id. at 653-54. Second, we have acknowledged a public policy exception to the doctrine if clear statutory expression of a right or duty is contravened. Id. at 654. Third, this court has accepted that an employee may invoke the doctrine of promissory estoppel by pleading the doctrine with particularity, demonstrating that the employer made a promise to the employee, that the employee relied on the promise to his detriment, and that the promise otherwise fits within the Restatement test for promissory estoppel. Id. Ogden asserts that he has an action under the second exception to the employment at will doctrine because the IDOI defendants contravened his clear statutory right to protection under the WBL.
In support of his assertions, Ogden points to Baker, in which an employee was allegedly wrongfully discharged for refusing to participate in a scheme to sell roofing products that violated public bidding laws and defrauded Indiana public schools. Id. at 653. On appeal, the supreme court noted that the public policy exception is a "separate but tightly defined exception to the employment at will doctrine" when an employer discharges an employee for refusing to commit an illegal act for which the employee would be personally liable. Id. at 654. Ultimately, the supreme court held that Baker did not have a common law claim under the exception to employment at will, because at its heart his claim rested on his allegation that the roofing activities conducted under an established statutory framework contravened other statutes about bidding public projects. Id. at 656.
We do not find this case relevant because the supreme court specified that the exception is "tightly defined" and applies to employees who refuse to commit illegal acts for which they would be "liable." Id. at 654. Ogden has not clarified how he would be liable for Mihalik's alleged personnel and regulatory violations.
In addition, Ogden points to Cantrell to support his contention that his claim falls within a common law exception to the employment at will doctrine. The Cantrell court noted that Indiana precedent has been
Cantrell, 849 N.E.2d at 494. Based on this passage, we conclude that the Cantrell court did not establish a common law exception to the employment at will doctrine for wrongful discharge under Art. I, § 9. Rather, the court clarified that it was not "embracing this general principle." Id. The court's purpose was instead to indicate that Art. I, § 9 does not create a private right of action, which is not relevant to the issue at hand.
Based on the foregoing, we conclude that (1) Ogden's memorandum was not protected speech under the Indiana Constitution; (2) Ogden was not entitled to due process protections under State personnel policy and EO 05-14; and (3) the trial court did not have subject matter jurisdiction over Ogden's claim that he was wrongfully terminated from his employment.
Affirmed.
DARDEN, J. and MATHIAS, J. concur.
