Community Foundation of Northwest Indiana, Inc., St. Mary Medical Center, Inc., and Rebecca Iwanus v. Elizabeth A. Miranda

FILED

Mar 19 2019, 8:10 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE

Michael D. Sears D. Eric Neff

Jacquelyn S. Pillar Crown Point, Indiana

Crown Point, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Community Foundation of March 19, 2019

Northwest Indiana, Inc., St. Court of Appeals Case No.

Mary Medical Center, Inc., and 18A-PL-1458

Rebecca Iwanus, Appeal from the Lake Superior

Appellants-Defendants, Court

The Honorable Calvin D.

v. Hawkins, Judge.

Trial Court Cause No.

Elizabeth A. Miranda, 45D02-1511-PL-83

Appellee-Plaintiff.

Tavitas, Judge.

Case Summary

[1] Community Foundation of Northwest Indiana, Inc. (“Community”), St. Mary

Medical Center, Inc. (“St. Mary’s”), and Rebecca Iwanus (collectively,

“Defendants”) appeal the trial court’s denial of their motion for summary

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judgment in proceedings brought by Elizabeth Miranda. We reverse and

remand.

Issue

[2] Defendants raise one issue, which we restate as whether the trial court properly

denied Defendants’ motion for summary judgment.

Facts

[3] Miranda began working at St. Mary’s in 2014 as a nurse on the oncology floor.

Miranda was unemployed prior to beginning her job at St. Mary’s. After

approximately six months of employment at St. Mary’s, Miranda requested and

was granted a transfer within St. Mary’s to a new position as a nurse liaison in

the emergency department. According to Defendants, the nurse liaison’s role

was:

At the time of “arriving” a patient [which occurs when a patient

arrives at the emergency department and registration employees

input the patient into the hospital’s system], if a nurse liaison was

present, her job was to instruct the registration employee as to the

patient’s chief complaint after discussion with the patient. If the

nurse liaison was not present, the registration employee would

input the chief complaint based on the patient’s description, and

the liaison would later amend the complaint, as necessary.

Appellants’ App. Vol. II p. 41 (internal citations omitted). Miranda claims,

because the position was relatively new to St. Mary’s, the assigned duties of the

nurse liaison evolved as the position became more developed. “Arriving” a

patient essentially means noting their arrival time to the emergency department.

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See Appellant’s App. Vol. II p. 104 (Iwanus states that, “When a patient came

up to the desk, we were to take their ID, arrive the patient”); see also Appellant’s

App. Vol. III p. 8 (Miranda explains that her role as a nurse liaison changed,

and “[d]uties were added. At first we were supposed to be strictly at the

registration, or the desk, to arrive the patient and get the chief complaint”).

Arriving a patient is important because certain procedures would need to be

followed for certain patients within a pre-determined time period depending on

the patient’s symptoms. For example, patients who came in complaining of

chest pain would need to be given an EKG within a certain time period after

the patient’s arrival. Thus, noting a patient’s arrival time is important for

purposes of rendering adequate and timely care.

[4] Greg Sampson is the Director of Emergency Services at St. Mary’s and was

Miranda’s direct supervisor. Iwanus was the supervisor of the registration

employees in the emergency department, and she supervised the registration

employees with whom Miranda, as nurse liaison, would work in the emergency

department. 1 In April 2015 (the “April meeting”), Sampson notified Miranda

that he received an email in March, complaining that Miranda was asking the

registration employees to delay recording the time of “arriving” patients, which

was “un[]ethical.” Appellants’ App. Vol. III p. 189.

1

The registration employees are not registered nurses.

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[5] Miranda claims that Sampson showed her the email complaint in the April

meeting authored by Iwanus. Iwanus, however, denies ever complaining about

Miranda. Until this point, Miranda stated that she and Iwanus never had any

issues with one another. Miranda admitted that she recalled asking a

registration employee to delay an “arriving” patient time in March 2015. At the

April meeting, Sampson instructed Miranda not to ask registration employees

to delay “arriving” patient times again.

[6] In July 2015, Miranda received her positive review for her performance during

the time period from March 10, 2014, until March 10, 2015, which was prior to

the date of the complaint Sampson received regarding Miranda’s request to

delay “arriving” patient times. Later that month, on July 23, 2015 (the “July

meeting”), Miranda was summoned to a meeting with Sampson and a human

resources representative. Sampson presented Miranda with a notice of

corrective action for again asking employees to delay “arriving” patients.

Sampson received complaints that Miranda again made the request to

registration employees on two separate occasions on July 20, 2015. Miranda

denies that she asked the registration employees to delay “arriving” patient

times again. Miranda informed Sampson that she would be submitting a

rebuttal to challenge the accusations made against her.

[7] After the July meeting, Miranda was suspended and escorted out. Immediately

after Miranda was escorted out, she contacted Lori Alicea, one of the

registration employees, and informed Alicea that Miranda had been suspended,

with the possibility of termination, due to allegations that Miranda was

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delaying patient treatment. According to Miranda, Alicea “became emotional”

and apologized because Alicea had raised the issue in July to supervisors,

because she was looking for direction on the proper course of action, and her

intent was not to get Miranda fired. Appellant’s App. Vol. II p. 202. Miranda

also contacted Gwen Perfetti, another nurse liaison and also told Perfetti that

she was suspended with a possibility of termination. Miranda claims she

received several phone calls from coworkers once they became aware of her

suspension.

[8] After Miranda’s suspension, Miranda submitted a rebuttal on July 27, 2015,

and attempted to begin the problem solving procedure outlined in the employee

handbook. Sampson terminated Miranda on July 29. After her termination,

Miranda’s nursing license was due for renewal, and Miranda was required to

list her termination on her renewal application. Miranda was required to

participate in a hearing before the Board of Nursing (“the Board”) to renew her

license. While Miranda’s hearing was pending, her license was put on

temporary status, but ultimately, Miranda’s license was renewed by the Board.

[9] On November 17, 2015, Miranda filed her “Complaint for Damages and

Injunctive Relief” (the “Complaint”) against Defendants. Miranda’s

Complaint alleges Count I, “Breach of Contract/Wrongful Termination”;

Count II, “Defamation, Libel & Slander Against Community and/or St.

Mary’s”; Count III, “Defamation, Libel & Slander Against Iwanus”; Count IV,

“Negligence Against Iwanus, Community, and/or St Mary’s”; Count V,

“Promissory Estoppel”; and Count VI, “Tortious Interference with Contractual

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Relationship/Business Relations.” Id. at 14-22. We address the basis for each

claim further below.

[10] Miranda’s complaint also sought injunctive relief, asking the trial court to issue

an injunction (1) prohibiting Defendants from sharing any information

regarding Miranda’s employment with Community and St. Mary’s; (2)

requiring St. Mary’s and Community to remove all “negative and false

notations” in Miranda’s employment records; (3) prohibiting St. Mary’s and

Community from refusing Miranda entrance to the premises where Miranda’s

“current employment requires her attendance”; (4) requiring St. Mary’s and

Community to turn over any and all employment records related to Miranda;

(5) requiring St. Mary’s and Community to “remove any and all negative

notations, comments, and/or findings . . . . associated with [Miranda’s] nursing

license”; and (6) requiring St. Mary’s and Community to immediately stop all

communications with the Board related to Miranda’s nursing license until the

resolution of Miranda’s lawsuit. Id. at 23.

[11] Defendants filed a motion for summary judgment on January 31, 2018. After a

hearing on May 16, 2018, the trial court concluded that it would take the

motion under advisement. 2

2

At the summary judgment hearing, the trial court stated:

What I will do, and tell you, I will – and what I normally do for a motion for summary

judgment proceedings is that I will certify whatever ruling I have, because there are a lot

of legal arguments in this one. And it would be almost a waste of time – well, I’m

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The trial court ultimately entered an order on May 23, 2018, denying

Defendants’ motion for summary judgment and certifying the order for

interlocutory appeal sua sponte.

Analysis

[12] Defendants appeal the trial court’s denial of their motion for summary

judgment on all counts of Miranda’s complaint. Summary judgment is

appropriate only when the moving party shows there are no genuine issues of

material fact for trial and the moving party is entitled to judgment as a matter of

law. Erie Indem. Co. for Subscribers at Erie Ins. Exch. v. Estate of Harris by Harris, 99

N.E.3d 625, 629 (Ind. 2018), reh’g denied; see also Ind. Trial Rule 56(C). Once

that showing is made, the burden shifts to the nonmoving party to designate

appropriate evidence to demonstrate the actual existence of a genuine issue of

perceiving it might be a waste of time that just a plain ruling, and you go through a trial,

and it goes up on appeal, wasted all of that time, . . . But I will take it under advisement.

And, of course, in summary judgment, we always start with the more favorable

arguments initially throughout going toward the nonmovant. That’s basic case law. . . .

But whatever it is in terms of the ruling, I will certify it. And generally, there are a few

exceptions on one hand – I have been here on the bench now 11 years. I don’t think

there have been more than five cases that have not been taken up by the Court of Appeals

where I certified it, the losing party takes it up on interlocutory appeal, and the Court of

Appeals hears it, because then you’d have some work to do. And I give them work.

*****

Because I allow the Court of Appeals to deal with that. And I haven’t been censured yet,

but there’s always a first time. You all can say he did “X” and he should have done “Y”

and “Z.”

Summary Judgment Hearing Tr. pp. 17-18.

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material fact. Schoettmer v. Wright, 992 N.E.2d 702, 705-06 (Ind. 2013). When

ruling on the motion, the trial court construes all evidence and resolves all

doubts in favor of the non-moving party. Id. at 706. We review the trial court’s

ruling on a motion for summary judgment de novo, and we take “care to ensure

that no party is denied his day in court.” Id. “We limit our review to the

materials designated at the trial level.” Gunderson v. State, Indiana Dep’t of Nat.

Res., 90 N.E.3d 1171, 1175 (Ind. 2018).

A. Breach of Contract, Promissory Estoppel, Wrongful Termination

[13] Defendants argue that the trial court erred by denying their motion for

summary judgment on Miranda’s breach of contract claim. Miranda’s basis for

her breach of contract claim is that she signed an employment offer letter and

on-boarding schedule (the “offer letter”) and an employee handbook (the

“handbook”), which applies to all St. Mary’s employees, when she began her

employment with St. Mary’s in 2014. Miranda contends that the offer letter

and the handbook constitute her employment contract. In response,

Defendants claim that Miranda was an at-will employee, who was terminated

due to performance issues. Importantly, Defendants note that the handbook

squarely states it is not a contract of employment.

i. The Documents

[14] First, we analyze the contents of the documents Miranda contends are

contracts. The offer letter includes directions at the top, which state:

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Please review the following form and provide your electronic

signature at the far bottom to indicate your acceptance of the

terms of employment. If you do not accept these terms, have any

changes or if you have any questions, please contact your HR

representative promptly.

Appellants’ App. Vol. II p. 93. The offer letter contains personal information

about Miranda, including her name, address, phone number, date of birth; date

of hire; job title; manager; starting rate; shift; pay group; benefit program; job

code; department; and hours worked per pay period. The offer letter also states:

This offer of employment and your continued employment with

[sic] is contingent upon your successful completion of an

employee health and background screening. Please indicate you

accept this agreement by providing your electronic signature

below.

Id. Miranda signed and dated the offer letter on February 25, 2014. Once

Miranda transferred to the emergency department, she received an email titled,

“Employee Transfer Information,” which included most of the same

information that was included in the offer letter. Notably, there is a start date

listed, but no term of employment on either document.

[15] The handbook, a separate document, states that it “is not a contract

guaranteeing employment for any specific duration. Although we hope that

your employment relationship with us will be long-term, either you or

Management may terminate this relationship at any time, for any reason, with

or without cause or notice.” Appellants’ App. Vol. III p. 53. The handbook

states that employment at St. Mary’s is “at will.” Id. at 63. The handbook also

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states that the policies contained in the handbook are “subject to change at the

sole discretion of Management.” Id. at 53. Finally, with regard to Miranda’s

specific allegations in this lawsuit, the handbook advises that “problem solving

is not available to the following corrective action status: suspension which

could result in termination.” Appellants’ App. Vol. II p. 96.

ii. Types of Employment

[16] In Orr v. Westminster Village North, Inc., our Supreme Court set forth the

distinctions in the type of employment in Indiana. 689 N.E.2d 712, 717 (Ind.

1997).

Historically, Indiana has recognized two basic forms of

employment: (1) employment for a definite or ascertainable term;

and (2) employment at-will. If there is an employment contract

for a definite term, and the employer has not reserved the right to

terminate the employment before the conclusion of the contract,

the employer generally may not terminate the employment

relationship before the end of the specified term except for cause

or by mutual agreement. If there is no definite or ascertainable

term of employment, then the employment is at-will, and is

presumptively terminable at any time, with or without cause, by

either party. Wior v. Anchor Industries, Inc., 669 N.E.2d [172,] 175

(Ind. 1996); Speckman v. Indianapolis, 540 N.E.2d 1189, 1192 (Ind.

1989) . . . .

The employment-at-will doctrine is a rule of contract

construction, not a rule imposing substantive limitations on the

parties’ freedom to contract. Streckfus v. Gardenside Terrace Co-Op.,

Inc., 504 N.E.2d 273, 275 (Ind. 1987). If the parties choose to

include a clear job security provision in an employment contract,

the presumption that the employment is at-will may be rebutted.

See Speckman, 540 N.E.2d at 1192; Streckfus, 504 N.E.2d at 275.

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Nevertheless, in Indiana, the presumption of at-will employment

is strong, and this Court is disinclined to adopt broad and ill-

defined exceptions to the employment-at-will doctrine. []

Orr, 689 N.E.2d at 717-18.

[17] Even though the presumption of at-will employment in Indiana is strong, our

Supreme Court has acknowledged certain exceptions to the at-will employment

presumption.

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. Generally, simply surrendering another job

or moving to another location to accept a new position which the

employee sought, standing alone, does not constitute adequate

independent consideration.

*****

Second, we have recognized a public policy exception to the

employment-at-will doctrine if a clear statutory expression of a

right or duty is contravened. For example, we have invoked the

public policy exception when an employee was discharged for

filing a workmen’s compensation claim, or when an employee

was discharged for refusing to commit an illegal act[.]

*****

Third, this Court has recognized that, in certain instances, an

employee may invoke the doctrine of promissory estoppel. To

do so effectively, the employee must plead or assert the doctrine

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with particularity. The employee must assert and demonstrate

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. at 718 (citations omitted).

[18] The Orr court also stated that it was going to “decline plaintiffs’ invitation” to

use that case to determine whether an employee handbook “can ever constitute

a unilateral contract serving to modify the otherwise at-will employment

relationship.” Id. at 720. Still, the Orr court concluded:

Even if we were to conclude that an employee handbook, under

some circumstances, can constitute a valid unilateral contract in

the absence of adequate independent consideration—and we do

not do so today—[the employer’s] Handbook could not

constitute such a unilateral contract and, in fact, cannot meet the

requirements set forth in Duldulao v. Saint Mary of Nazareth Hosp.

Center, 115 Ill.2d 482, 106 Ill.Dec. 8, 12, 505 N.E.2d 314, 318

(1987), upon which plaintiffs primarily rely while urging the

Court to create a handbook exception to the employment-at-will

doctrine.

Id. The Duldulao rule states:

[A]n employee handbook may constitute a unilateral contract

and bind the employer if the following three criteria are met: (1)

the language of the employee handbook must contain a promise

clear enough that an employee would reasonably believe that an

offer had been made; (2) the employee handbook must be

disseminated to the employee in such a manner that the

employee is aware of its contents and reasonably believes it to be

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an offer; and (3) the employee must accept the offer by

commencing or continuing work after learning of the terms of the

employee handbook.

Id. In other words, our Supreme Court appeared to consider, without explicitly

adopting, the Duldulao rule. Furthermore, because the plaintiffs in the Orr court

focused on the issue regarding the contract, the court there did not focus on

whether the plaintiffs defeated the presumption of at-will employment

otherwise. See id. at 717 (“The sole question in this case is whether the

Handbook served to convert plaintiffs’ otherwise at-will employment

relationship with Westminster into an employment relationship that required

Westminster to terminate them only for good cause”). Here, we construe

Miranda’s argument to be both that she had a contract, pursuant to the Orr

court’s analysis in Duldulao, and that, even if she did not have a contract, she

has defeated the presumption of at-will employment. Accordingly, we address

both arguments.

iii. Miranda did not have a contract with St. Mary’s or Community

[19] We are again persuaded by the Orr court in our analysis of this issue. In

concluding that the handbook in Orr did not meet the Duldulao requirements,

our Supreme Court stated:

Here, we need go no further than the first step under Duldulao.

The Handbook certainly cannot be said to contain a “clear

promise” which plaintiffs could reasonably believe constitutes an

“offer.” Not only is a statement that employees will only be

discharged for just or good cause absent from the Handbook, but

also the Handbook expressly states that while “in most cases,

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disciplinary action will begin with an oral warning . . . . if

warranted . . . dismissal may occur immediately.” (R. at 33.)

The Handbook also states that the list of violations “is not

intended to be all inclusive,” (R. at 83) and emphasizes that

major violations in particular “can result in immediate discharge

without warning,” (R. at 82). Thus, there is no clear promise to

follow a progressive disciplinary approach, and, in fact, there are

clear statements which provide that Westminster, in appropriate

circumstances, may discharge employees without warning.

Under such circumstances, Illinois courts interpreting Duldulao

have concluded that, as a matter of law, the employee handbook

does not create enforceable contract rights because the handbook

has prescribed no “specific procedures” by “positive and

mandatory language.” St. Peters v. Shell Oil Co., 77 F.3d 184, 187

(7th Cir. 1996); Lampe v. Swan Corp., 212 Ill.App.3d 414, 156

Ill.Dec. 658, 659, 571 N.E.2d 245, 246 (1991).

If this were not enough, the Handbook also contains a

disclaimer, which is placed towards the front of the Handbook

and which clearly states that the Handbook is not a contract and

that its terms can be changed at any time. A similar disclaimer is

included in the Personnel Handbook Statement which

accompanied, and was referenced in, the Handbook and which

Westminster required plaintiffs to sign. Again, even under the

Duldulao rule, an employee handbook bearing or accompanied by

such disclaimers, particularly when the employee signs one of the

disclaimers, generally, as a matter of law, does not create a

unilateral contract.

*****

The Handbook’s vague and general statements about categories

of employees, annual performance reviews, and job security,

when weighed against the clear and specific language giving

Westminster broad discretion in disciplinary matters and the

prominent disclaimers, are simply not enough to create an issue

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of material fact as to whether the Handbook constituted a valid

offer under a unilateral contract analysis. See Lee v. Canuteson,

214 Ill.App.3d 137, 157 Ill.Dec. 900, 573 N.E.2d 318 (1991). As

a matter of law, then, such a Handbook could not constitute a

valid unilateral contract even if we were to hold that there were

no requirement that such a contract be supported by adequate

independent consideration.

Id. at 721-22.

[20] While the handbook and offer letter here are not exactly the same as the one at

issue in Orr, the similarities clearly demonstrate that these documents cannot be

construed to be a contract under Duldulao. First, the offer letter appears to be

nothing more than an administrative document that gives Miranda information

related to her employment. Second, the handbook itself squarely states that it is

not a contract. The handbook also states that all employees are at-will and that

the contents of the handbook should not be construed as a contract. The mere

fact that the handbook sets out certain employee policies does not convert the

handbook into an employment contract. See Wynkoop v. Town of Cedar Lake, 970

N.E.2d 230, 236 (Ind. Ct. App. 2012) (“Following Orr, this Court has declined

to construe personnel policies as converting an individual’s employment from

an at-will relationship” to a contract.), trans. denied; see also Harris v. Brewer, 49

N.E.3d 632, 642 (Ind. Ct. App. 2015) (finding that the handbook “would not

constitute a valid unilateral contract as it does not contain a clear promise of

secure employment”), trans denied. Furthermore, the handbook states that St.

Mary’s has the authority to change the contents of the handbook on its own.

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[21] Because we find that Miranda does not have a contract for employment, we

also reject her arguments that certain procedures in the handbooks were not

followed, constituting a breach of contract. For completeness, however, we

respond to Miranda’s argument that a thorough investigation of the allegations

against her was not completed. Specifically, Miranda contends that a

“thorough investigation” was not conducted because “no one questioned any of

the character witnesses supplied to the Appellants by Miranda[.]” Appellee’s

Br. p. 15.

[22] While we generally agree with Miranda’s contention that policies in the

handbook should mean something, we cannot say the designated evidence

demonstrates that a thorough investigation was not completed. In fact, there

are several emails and documents related to the allegations against Miranda.

The corrective action indicates there was “further review[.]” Appellants’ App.

Vol. II p. 110. Miranda’s contention that Defendants did not speak with her

“character witnesses” does not create a genuine issue of material fact as to

whether Miranda has a contract for employment. See Appellee’s Br. p. 15.

[23] We reject the idea that Miranda had a contract for employment, and

accordingly, we will evaluate whether Miranda has otherwise overcome the

presumption of at-will employment.

iv. Miranda is an at-will employee

[24] As stated above, under Orr, there are three exceptions to overcome the

presumption of at-will employment. The exceptions are: (1) adequate

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independent consideration; (2) public policy; and (3) promissory estoppel. In

examining the three prongs in Orr to determine whether Miranda has overcome

the presumption of at-will employment, it is clear she has not. It is also clear

that Defendants have designated evidence which points to Miranda’s at-will

employment status.

a. Adequate Independent Consideration Exception

[25] First, the designated evidence demonstrates there was no adequate independent

consideration. Not only does the designated evidence show that Miranda did

not move or relocate to begin her job at St. Mary’s, Miranda was not employed

prior to her job at St. Mary’s. Accordingly, it cannot be reasonably argued that

Miranda received some individual consideration for commencing employment.

Miranda argues that consideration does exist, but we are unclear what the

consideration may be because the designated evidence does not demonstrate

any consideration. 3 See Appellee’s Br. p. 14. This is not considered adequate

for the purpose of finding Miranda’s employment at St. Mary’s subject to this

3

Appellee’s full argument states:

Applying Wynkoop to the case at bar reveals that Miranda in her designated materials has

two documents to establish a contract. The first is the Agreement of Employment Offer .

. . wherein it sets forth Miranda’s position, her rate of pay, her shift; and required her

signature to accept the offer of employment agreement. All the elements of a contract

exist offer [sic], acceptance and consideration.

Appellee’s Br. p. 14. To the extent Miranda argues that St. Mary’s payment to Miranda for her

services as an employee is the consideration, we believe this is insufficient for the adequate

independent consideration analysis. To conclude otherwise would mean virtually every employment

offer letter stating an employee’s rate of pay and requesting an employee’s signature becomes an

employment contract.

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first exception to at-will employment. The adequate independent consideration

exception is inapplicable here.

b. Public Policy Exception

[26] Furthermore, Miranda’s employment was not terminated for a reason that

would trigger the public policy exception. Miranda was terminated for

continuing to request the registration clerk to delay the time for “arriving”

patients, which Miranda had previously admitted to, and she was warned to

refrain from such practice. Regardless of whether this conduct was “unethical,”

as Miranda contends it was not, Miranda was instructed not to request delaying

the recording time of “arriving” patients out of concern for patients, and she

continued to make these requests to the registration clerks. The public policy

exception is inapplicable here.

c. Promissory Estoppel Exception

[27] Finally, as to the third exception under the Orr analysis, there is no designated

evidence that would entitle Miranda to relief under a theory of promissory

estoppel. To prevail under a theory of promissory estoppel, Miranda “must

assert and demonstrate that the employer made a promise to the employee; that

the employee relied on that promise to [her] detriment; and that the promise

otherwise fits within the Restatement test for promissory estoppel.” Orr, 689

N.E.2d at 718.

[28] Miranda asserts that, in addition to the discipline procedures as set forth in the

handbook, Miranda’s “glowing review” that she received shortly before her

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suspension demonstrates that she met the standards of Defendants’

employment. Appellee’s Br. p. 17. With regard to the review, it is not the case

that a positive review of Miranda results in a shield of continued employment.

While Miranda may not have known about the review until after she was

accused of asking registration employees to delay “arriving” patients, the

review occurred before the complaints were lodged against Miranda.

[29] Furthermore, Miranda’s only alleged detriment was loss of employment. If loss

of employment was sufficient for promissory estoppel, every terminated

employee would have a claim for promissory estoppel. See Jarboe v. Landmark

Community Newspapers of Indiana, Inc., 644 N.E.2d 118, 122 (Ind. 1994) (“The

doctrine of promissory estoppel may be available to an at-will employee, but the

remedy is limited to damages actually resulting from the detrimental reliance

and will not include the benefit of altering the employment status from an at-

will relationship to a permanent one. . . .”); see also Uhlman v. Panares, 908

N.E.2d 650, 655 (Ind. Ct. App. 2009) (concluding that, despite Uhlman’s

argument that she was a contract employee through the company’s personnel

policies, Uhlman was an at-will employee and “under Uhlman’s reasoning, no

employee covered by the Personnel Policies would be an at-will employee”).

[30] Based on Miranda’s alleged reliance, Miranda contends she needed assistance

to pay regular expenses after her termination. Miranda, however, does not

have a valid claim for future wages under the doctrine of promissory estoppel.

Specifically, regarding promissory estoppel:

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[T]he line Indiana draws is between expectation damages and

reliance damages. In future wages, the employee has only an

expectation of income, the recovery of which promissory

estoppel will not support in an at-will employment setting. In

wages forgone in order to prepare to move, as in moving

expenses themselves, the employee gave up a presently

determinate sum for the purpose of relocating. Both moving

expenses and forgone wages were the hopeful employee's costs of

positioning himself for his new job; moving expenses happen to

be out-of-pocket losses, while forgone wages are opportunity

costs. Both are reliance costs, not expectancy damages.

Jarboe, 644 N.E.2d at 122 (quoting D&G Stout, Inc. v. Bacardi Imports, Inc., 923

F.2d 566, 569 (7th Cir. 1991)). In Jarboe, our Supreme Court expressly rejected

the requested damages “[t]o the extent that the plaintiff’s request for estoppel

seeks to compel the defendants to resume their employment of the plaintiff, or

seeks damages in the form of lost wages following his discharge,” because these

damages constituted expectation damages. Id. The same is the case here.

Miranda does not contend she had specific out-of-pocket losses from moving or

even from giving up more reliable employment for her job at St. Mary’s.

Instead, Miranda merely seeks damages for future employment. These

“damages” do not constitute detrimental reliance in the context of a promissory

estoppel claim. The promissory estoppel exception is inapplicable here.

v. Wrongful Termination

[31] Because we find that the handbook and the offer letter do not constitute a

contract of employment and the at-will employment exceptions do not apply,

Defendants are also entitled to summary judgment on Miranda’s complaint for

Court of Appeals of Indiana | Opinion 18A-PL-1458 | March 19, 2019 Page 20 of 36

wrongful termination. See Harris, 49 N.E.3d at 636 (affirming denial of Harris’

wrongful termination claim on summary judgment because “the Handbook did

not constitute a valid unilateral contract; and [] an exception to the

employment-at-will doctrine did not apply to Harris”), trans. denied.

[32] Accordingly, Defendants established that there were no genuine issues of

material fact and that they were entitled to judgment as a matter of law on the

issues of breach of contract, promissory estoppel, and wrongful termination.

The trial court erred in failing to grant summary judgment in favor of

Defendants on these counts.

B. Defamation, Libel, and Slander

[33] Defendants also argue that it was error for the trial court to deny their motion

for summary judgment on Miranda’s claims for defamation, libel, and slander

against Defendants. Miranda’s count for defamation alleges:

*****

36. That Defendant Iwanus spoke, published, disseminated, or

otherwise communicated throughout the workforce, and/or the

Nursing Community and/or the public that Plaintiff Miranda

was “unethical.”

37. That Defendant Iwanus spoke, published, disseminated, or

otherwise communicated throughout the workforce, and/or the

Nursing Community and/or the public that Plaintiff Miranda

was incompetent, as set forth in the Notice of Corrective Action.

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38. That Defendant Iwanus spoke, published, disseminated, or

otherwise communicated throughout the workforce, and/or the

Nursing Community and/or the public that Plaintiff Miranda

was terminated from Community for receiving multiple write-

ups, and/or for reasons of continual incompetency, and/or

simply made up outlandish reasons as to why Plaintiff Miranda

was terminated from Community, all of which were, and remain

utterly devoid of merit, untrue, lacking in factual basis, and made

by Defendant Iwanus with the purpose of tarnishing Plaintiff

Miranda’s professional reputation.

39. That Defendant Iwanus engaged in several communications,

as demonstrated herein, which imputed misconduct regarding

Plaintiff Miranda’s trade, profession, office, or occupation.

Appellants’ App. Vol. II p. 17.

Miranda, in her brief, contends that there are “four statements all written that

were defamatory as to [Miranda].” Appellee’s Br. p. 19. Those statements are:

(1) the email, which Miranda contends is “missing,” between Iwanus and

Sampson in which Iwanus calls Miranda “un[]ethical;” (2) the email from

Grata to Sampson alleging that “[a]sking Registration to wait to arrive a patient

is un[]ethical;” (3) the statement on the notice of corrective action dated July

23, 2015; and (4) the notice of termination dated July 29, 2015. Id. at 19-20.

Later in her brief, Miranda contends that a fifth statement made from one St.

Mary’s employee to another regarding Miranda’s termination also serves as the

basis for her defamation claim. See id. at 22-23.

[34] Defendants argue that Miranda does not list the allegedly defamatory

statements in her complaint, which is contrary to the pleading requirements for

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defamation. In the alternative, Defendants argue that Miranda admitted to the

conduct she complains is defamatory, and finally, that the qualified privilege of

common interest protects the statements made by Defendants and their

employees with regard to Miranda’s employment.

[35] Miranda’s complaint alleges claims of defamation, libel, and slander. Her brief,

however, focuses on defamation more broadly. Both slander and libel are

species of defamation. See Branham v. Celadon Trucking Services, Inc., 744 N.E.2d

514, 522 (Ind. Ct. App. 2001) (“Libel is a species of defamation under Indiana

law”), trans. denied; see also Branaman v. Hinkle, 307 N.E. 546, 548 (Ind. 1894)

(finding that false defamatory words if written are libel, and if spoken, are

slander). A finding of truth or qualified privilege, both of which Defendants

argue, can defeat defamation generally in certain circumstances, and thereby

defeat libel or slander. See Indiana Code Section 34-15-1-2 (“In an action for

libel or slander, the defendant may allege: [] the truth of the matter charged as

defamatory”); see also Melton v. Ousley, 925 N.E.2d 430, 439 (Ind. Ct. App. 2010)

(“Truth is a complete defense to defamation.”) (citations omitted); see also Bals

v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992) (finding that qualified privilege

is a defense to a defamation action).

[36] In order to determine whether Defendants are entitled to summary judgment on

their claims, we must consider the statements themselves. On March 19, 2015,

an email from Alexandra Neyhart to Rebecca Borkowski indicated that

Miranda was upset with a registration employee because the employee

“arrived” a patient before Miranda was ready. Specifically, the email stated:

Court of Appeals of Indiana | Opinion 18A-PL-1458 | March 19, 2019 Page 23 of 36

When [Miranda] came back she got upset with me because I had

already arrived him as chest pain and she wanted me to wait to

enter it till [sic] she was there so she could be within the 10[-]

minute window frame [to perform an EKG] and since I didn’t

she only had 6 minutes to do it. This isn’t the first time she has

asked me to wait to press enter for it to be in the 10[-]minute time

frame.

Appellants’ App. Vol. III p. 189. Kelly Grata received the email and forwarded

it to Sampson and Linda Greer. Grata stated, “Asking Registration to wait to

arrive a patient is un-ethical. This is not the first complaint that I have received

regarding [Miranda] and her telling registration how to do their job at the front

desk.” Id.

[37] After being faced with these allegations, Miranda sent a follow-up email to

Sampson and stated that she “do[es] not deny doing this,” but denied that her

conduct was unethical. Id. at 191. Later, Miranda stated, “I had even informed

the registration employees that I had miss-informed [sic] them and informed

them the correct manner that Linda and you expected.” Id. at 192. Miranda

also claims that, during the April meeting with Sampson, Sampson showed her

an email allegedly from Iwanus containing a statement that Miranda was

unethical. Defendants have denied that Iwanus sent such an email calling

Miranda “unethical.” This email, which Miranda contends is a “missing

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email,” is important to Miranda because, as she argues, “it was the first time

that the term ‘un-ethical’ was directed towards Miranda.” 4 Appellee’s Br. p. 19.

[38] The corrective action report, given to Miranda during the July meeting, states:

On 7/20/15 2 separate occasions occurred whereby Ms. Miranda

requested or directed registration personnel not to arrive a patient

into the BD flow until she was able to consult over the chief

complaint. One patient was experiencing chest pain and the

other [s]hortness of breath. The chest pain patient KM was

visibly in distress and yet Ms. Miranda insisted that the clerk not

proceed, thus delaying intervention. The delay was

approximately 5 minutes at which time 21:42 registration waited

no longer and care was initiated within 2 minutes 21:44 by the

triage nurse. The patient arrived at 21:37. The documented pain

level during triage was 10 in left chest jaw and shoulder. The

B/P was 143/129. The 52 yo patient had extensive cardiac

history including a pacemaker. The second patient complaining

of shortness of breath had a saturation of 91%. There was no

delay in registration or treatment, but there was a request by Ms.

Miranda to delay because she was attending to another patient.

The triage nurse of record had acknowledged and documented

Ms. Miranda directing the registration staff not to register

patients on 2 separate occasions. This is the second occurrence

of this issue in the last 4 months. The first anecdotal [sic]

occurred on 2/16/15 and was addressed on 4/2/15.

Appellants’ App. Vol. III p. 163.

4

When asked about this at her deposition, Miranda stated: “Umm, [Iwanus] did not give – send a copy of

the email to my supervisor. Instead of discussing the situation with my supervisor, sending the email, she

directly sent the email to her supervisor and cc’d it to the chief of nursing officer. So my supervisor was

caught – my manager, Greg Sampson, was caught off guard himself about the situation.” Appellant’s App.

Vol. II p. 179. Still, Iwanus and St. Mary’s contend Iwanus did not send this email.

Court of Appeals of Indiana | Opinion 18A-PL-1458 | March 19, 2019 Page 25 of 36

[39] The corrective action report was updated to reflect Miranda’s ultimate

termination. The “work rule violation” listed was: “Patient Safety Violation –

Delay of patient care and treatment. Patient endangerment.” Id. at 184. The

narrative on the corrective action report states:

After further review, based on the event outlined in the attached

Investigative Suspension/subject to discharge issued on 7/23/15,

Ms. Miranda’s employment as a RN Liaison at St. Mary’s

Medical will be terminated effective 7/29/15.

Id. Miranda stated that she does not believe the emails were published to

anyone outside of the St. Mary’s system, and there is no evidence the emails,

corrective action report, or any statements regarding Miranda was shared with

anyone outside of St. Mary’s.

[40] Finally, at her deposition, Miranda contended there were several statements

made about her employment status after her termination by different St. Mary’s

employees. Miranda claimed that Mendoza, a registration employee, told

Miranda that Iwanus told Miranda Davis, another registration employee, that

Miranda was terminated “not due to only that incident in July, but due to

several write-ups.” 5 Id. at 88. Miranda also contends that registration

5

When asked to explain this allegation, Miranda stated: “[Iwanus] did talk to her registration employees

about not providing character letters in my defense.” Appellant’s App. Vol. II p. 88. When asked how

Miranda was aware of this, she stated that she was “told by one of the registration employees. I don’t recall

the name.” Id. Miranda also contends that the “several write-ups” comment was not “word-by-word;”

however, we address the comment as it was characterized in the designated evidence. See Appellee’s App.

Vol. II p. 104.

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employees were told not to provide character letters in Miranda’s defense;

however, Miranda does not point to any specific statements and does not

“recall the name” of the person who told her this statement. Appellee’s App.

Vol. II p. 104.

[41] “Qualified privilege exists as a defense to defamation in order to accommodate

the important role of free and open intracompany communications and

legitimate human resource management needs.” Harris, 49 N.E.3d at 646

(citing Bals, 600 N.E.2d at 1356). “This defense applies to communications

‘made in good faith on any subject matter in which the party making the

communication has an interest or in reference to which he has a duty, either

public or private, either legal, moral, or social, if made to a person having a

corresponding interest or duty.’” Id. (quoting Bals, 600 N.E.2d at 1356).

“Intracompany communications regarding the fitness of an employee are

protected by the qualified privilege.” Id. “Absent a factual dispute, whether a

statement is protected by qualified privilege is a question of law.” Bals, 600

N.E.2d at 1356. Once a defendant has proven qualified privilege, “the plaintiff

has the burden of overcoming that privilege by showing that it has been

abused.” Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009).

[42] Regarding the statements made in the corrective action report, and the emails

between the St. Mary’s employees, the designated evidence clearly

demonstrates the statements were protected by qualified privilege. The

communications were purely intracompany and directly related to Miranda’s

Court of Appeals of Indiana | Opinion 18A-PL-1458 | March 19, 2019 Page 27 of 36

fitness for employment. 6 Despite the contentions in her complaint, in the

designated evidence, Miranda admitted she had no evidence that the statements

were relayed outside of the St. Mary’s system. The emails themselves also

demonstrate that they remained inside the hospital system. In other words, the

communications were relayed purely intracompany so that St. Mary’s could

evaluate the work of its employees.

[43] Ultimately, St. Mary’s, as Miranda’s employer, correctly considered the

conduct of its employees as it relates to patient care. See Board of School Com’rs

of City of Indianapolis v. Pettigrew, 851 N.E.2d 326, 331 (Ind. Ct. App. 2006)

(stating that intracompany communications regarding the fitness of an

employee are protected by qualified privilege “in order to accommodate the

important role of free and open intracompany communications and legitimate

human resource management needs”) (citations omitted), trans. denied. The

designated evidence demonstrates that St. Mary’s kept these communications

within the system. Accordingly, Defendants proved that the qualified privilege

protected the communications Miranda contends are defamatory.

[44] Miranda also alleges that other statements, specifically about her employment

status, were defamatory. At her deposition, Miranda claimed that Iwanus told

a registration employee that Miranda was terminated “due to several write-

6

For this reason, we dismiss Miranda’s argument regarding a “missing email” authored by Iwanus. See

Appellee’s Br. p. 19. Iwanus was a St. Mary’s employee, and accordingly, had she authored the email calling

Miranda “unethical” instead of Grata, who appears to be the actual author of the email, the communication

still would have been protected by qualified privilege.

Court of Appeals of Indiana | Opinion 18A-PL-1458 | March 19, 2019 Page 28 of 36

ups.” 7 Appellants’ App. Vol. II p. 88. The designated evidence demonstrates

that this is true. In March, Miranda was cited for improperly asking

registration employees to delay “arriving” patient times, which Miranda

admitted to doing. Miranda was subsequently cited twice in July for the same

offense. “Truth is a complete defense in civil actions for defamation.” Melton v.

Ousley, 925 N.E.2d 430, 437 (Ind. Ct. App. 2010). Miranda did in fact have

more than one allegation of asking registration employees to delay “arriving”

patient times, and the designated evidence demonstrates as much.

[45] Accordingly, Defendants established that there were no genuine issues of

material fact and that they were entitled to judgment as a matter of law on the

issues of libel, slander, and defamation. The trial court erred in failing to grant

summary judgment in favor of Defendants on these counts.

C. Negligence

[46] Defendants also contend the trial court erred by denying their motion for

summary judgment on Miranda’s claims of negligence. Miranda’s negligence

claim alleges that Defendants, and specifically Iwanus, owed Miranda “a duty

to act reasonably under the circumstances.” Appellants’ App. Vol. II p. 18.

Miranda claims that Iwanus breached that duty by:

7

Miranda learned this from one of her former co-workers who repeated the statement to Miranda.

Court of Appeals of Indiana | Opinion 18A-PL-1458 | March 19, 2019 Page 29 of 36

i. Disseminating false information imputing negative light

upon [Miranda’s] professional reputation;

ii. Falsifying reports regarding [Miranda’s] work-product;

[and]

iii. Harassing and harrying [Miranda] during [Miranda’s]

employment with Community and/or St. Mary’s.

Id. As a result, Miranda alleges that she suffered humiliation, reputational

harm, loss of employment with Community and/or St. Mary’s, pain and

suffering, and that her nursing license was jeopardized. See id. Finally, due to

Iwanus’ employment with St. Mary’s and/or Community, Miranda contends

that St. Mary’s and Community are liable under the doctrine of respondeat

superior. See id. at 19. Miranda also contends that St. Mary’s and Community

breached a duty owed to Miranda by:

i. Disseminating false information imputing negative light

upon [Miranda’s] professional reputation;

ii. Negligently failing/refusing to abide by rules and

regulations ratified by St. Mary’s and/or Community

regarding Corrective Action;

iii. Terminating its employment with [Miranda] without a

thorough investigation;

iv. Negligently relying and disseminating false information in

conjunction with its termination of [Miranda].

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Id.

[47] Defendants argue that Miranda’s “allegations are an artful attempt to

circumvent her status as an at-will employee under Indiana law and do not

stated [sic] a cognizable claim under Indiana law.” Appellants’ Br. p. 16.

Further, Defendants argue that, “As for the duty of reasonable care,

[Defendants] can find no case that imposes such a duty on an employer, save

for the duty to provide a safe workplace, not at issue in this case.” Id.

[48] In her brief, Miranda does not appear to make a separate negligence argument,

but instead incorporates the argument into her claim of defamation.

Specifically, Miranda argues:

Should this court determine that the above facts do not constitute

actionable defamation of character, they most certainly establish

the claim of negligent misrepresentation. Pursuant to the

Restatement (Second) of Torts Sec. 552 (1997): “One who, in the

course of his business, profession, or employment, or in any

other transaction in which he has a pecuniary interest, supplies

false information for the guidance of others in their business

transactions, is subject to liability for pecuniary loss caused by

them by their justifiable reliance upon the information.”

Id. at 24. Miranda then goes on to continue her argument related to

defamation.

[49] We assume that Miranda is arguing the tort of negligent misrepresentation.

Negligent misrepresentation has been applied in the employer-employee

context, but not in the way in which Miranda alleges. “[I]n order to establish

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negligent misrepresentation, a plaintiff must establish that the person making

the representations was under a duty not to misrepresent the information.”

Darst v. Illinois Farmers Ins. Co., 716 N.E.2d 579, 584 (Ind. Ct. App. 1999).

“Thus, we can only assume that both the breach of a duty to provide accurate

information and negligent misrepresentation would be established by a showing

that a person, under a duty to supply accurate information, fails to exercise

reasonable care in doing so and as a result the plaintiff, who justifiably relied on

the information, was damaged.” Id. at 584-85.

[50] First, the designated evidence demonstrates that Miranda admitted, at least

once, to the misconduct of which she was accused and that she asked

registration employees to delay “arriving” patient times. On this alone,

Miranda cannot prove that Defendants supplied false information. Regardless,

negligent misrepresentation between an employee and employer does not apply

in this context. In Darst, our court summarized our previous decision in Eby,

where:

an employee sought damages from his employer for negligent

misrepresentation after the employer falsely represented that

there was a job for the employee in Florida, causing the

employee and his wife to relocate from Indiana to Florida. Upon

his arrival in Florida, the employee was told that there was no

employment for him. . . . The court determined that the

employer had a duty to its employee, and found that the facts

could constitute a breach thereof in conformance with the tort of

negligent misrepresentation.

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Darst, 716 N.E.2d at 583-84 (citing Eby v. York-Division, Borg-Warner, 455

N.E.2d 623, 629-30 (Ind. Ct. App. 1983)) (internal citations omitted), trans.

denied.

[51] Miranda’s case is distinguishable from Eby in that she has not alleged that she

detrimentally relied on any false statements made by her employer. The tort of

negligent misrepresentation cannot be extended to the facts of this case.

Accordingly, Defendants established that there were no genuine issues of

material fact and that they were entitled to judgment as a matter of law on the

issue of negligence. The trial court erred in failing to grant summary judgment

in favor of Defendants on these counts.

D. Tortious Interference with Contractional Relationship/Business

Relations

[52] Miranda’s tortious interference claims appear to be directed at Iwanus.

Miranda alleges that she had a contract with St. Mary’s and Community, of

which Iwanus was aware, and that Iwanus induced a breach of contract by

making false statements about Miranda. Alternatively, Miranda claims that a

valid business relationship existed between Miranda and St. Mary’s and

Community, that Iwanus was aware of this business relationship, and that

Iwanus intentionally interfered with that relationship. Miranda argues that her

damages based upon termination of employment, consisted of reduced wages in

subsequent employment, substantial reputational harm, pain and suffering, and

emotional distress.

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[53] Because we have concluded that Miranda did not have a contract for

employment, we need only evaluate Miranda’s tortious interference claim with

regard to her potential business relations. “An at-will employee ‘must be able

to expect that his continued employment depends on the will of his employer

and not upon the whim of a third[]party interferer.’” Boys and Girls Clubs of

Northwest Indiana, 845 N.E.2d at 138 (quoting Bochnowski v. Peoples Fed. Sav. &

Loan Ass’n, 571 N.E.2d 282, 285 (Ind. 1991)). “Such an employee may bring a

claim for tortious interference provided that, in addition to demonstrating the

standard elements of the tort, she is ‘prepared to show that the defendant

interferer acted intentionally and without a legitimate business purpose.’” Id.

[54] First, we note that no evidence exists that Iwanus interfered with Miranda’s

business relationship. While Miranda claims that Iwanus authored an email

that called Miranda “unethical,” it was demonstrated that Grata referred to

Miranda’s conduct as “unethical;” not Iwanus. See Appellants’ App. Vol. III p.

189. Miranda cannot attempt to create a genuine issue of material fact with

regard to Iwanus’ authorship of the email by merely stating as much. See Beatty

v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 2008) (“guesses, supposition,

and conjecture are not sufficient to create a genuine issue of material fact to

defeat summary judgment”) (citations omitted), trans. denied.

[55] Furthermore, the designated evidence demonstrates that Miranda was

terminated for violating a St. Mary’s policy that jeopardized patients on more

than one occasion by asking registration employees to delay “arriving” patient

times. The designated evidence indicates that the decision to terminate

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Miranda was entirely the decision of the employer and was not induced by a

third-party interferer. Accordingly, Defendants established that there were no

genuine issues of material fact and that they were entitled to judgment as a

matter of law on the issue of tortious interference. The trial court erred in

failing to grant summary judgment in favor of Defendants on these counts.

[56] Finally, we note that Miranda cannot succeed on her injunctive relief claim,

because she has failed on the merits here. It appears that some of Miranda’s

requests for injunctive relief are only for temporary relief during the pendency

of this action, whereas other requests are for a more permanent solution. In

either case, an individual must prove that they are either likely to be successful

on the merits, for temporary injunctions, or were successful on the merits, for

permanent injunctions. See Ferrell v. Dunescape Beach Club Condominiums Phase I,

Inc., 751 N.E.2d 702, 712-13 (Ind. Ct. App. 2001). Because Defendants have

succeeded on each of Miranda’s claims, she is not entitled to injunctive relief

because she cannot prove that she is likely to be or has been successful on the

merits.

[57] Defendants were entitled to summary judgment on all of Miranda’s claims

based on the designated evidence. We note that the trial court issued a brief

order denying summary judgment and certified the order for interlocutory

appeal sua sponte to “allow” this court to “deal with” the legal issues

surrounding summary judgment. Summary Judgment Tr. p. 18. We are

perplexed by the trial court’s statement that he would “give [this court] work[,]”

shirking its duties and essentially punting to this court to serve as the court of

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first review. Id. That is not the role of our court. The trial court erred by

denying Defendants’ motion for summary judgment.

Conclusion

[58] There are no genuine issues of material fact, and the Defendants are entitled to

judgment as a matter of law. The trial court erred by denying Defendants’

motion for summary judgment. Accordingly, we reverse and remand.

[59] Reversed and remanded.

Baker, J., and May, J., concur.

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