Forrest Perkins v. Memorial Hospital of South Bend

FILED

Mar 31 2020, 12:18 pm

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 20S-CT-233

Forrest Perkins

Appellant (Plaintiff below)

–v–

Memorial Hospital of South Bend

Appellee (Defendant below)

Argued: October 10, 2019 | Decided: March 31, 2020

Corrected

Appeal from the St. Joseph Superior Court

No. 71D05-1609-CT-404

The Honorable Jenny Pitts Manier, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 18A-CT-1340

Opinion by Justice Massa

Chief Justice Rush and Justices David and Goff concur.

Justice Slaughter dissents with separate opinion.

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

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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,

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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

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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

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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, 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 commit

an illegal act for which he would be personally liable,” we reasoned, “is as

much a violation of public policy declared by the legislature as firing an

employee for filing a workmen’s compensation claim.” Id.

In Baker v. Tremco Inc., our most recent decision on the public policy

exception, we found that an employee’s mistaken belief of law did not

justify protection. 917 N.E.2d at 655–56. The plaintiff in Baker alleged he

was fired for refusing to sell his employer’s roofing products through an

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education consortium that he argued contravened Indiana bid rigging

statutes. Id. at 653. We clarified that an employee’s mistaken belief that his

employer’s conduct was illegal under a statute—while in reality the

conduct was expressly authorized by another statute—was not “on par

with the rights and obligations” protected by the public policy exception.

Id. at 655–56.

Perkins offers two alternative theories to explain why his conduct

should be protected as the exercise of a clear statutory right or duty. First,

Perkins argues that we should expand the public policy exception to cover

all testimony by witnesses in unemployment hearings. Second, Perkins

contends that unlike the plaintiff in Baker—who had a mistaken belief that

his employer’s conduct was illegal—Perkins’s mistaken belief that a

subpoena would have required him to testify was not a mistaken

interpretation of the law but of fact. Perkins asserts he was induced to

testify when he was told that a subpoena would be waiting for him at the

hearing. We decline to endorse these broad categorical distinctions.

Memorial responds that since the legislature has granted no express

statutory right or duty to testify as a witness—outside of a subpoena—

testimony does not fall within the limited public policy exception. To

Memorial, Perkins’s acknowledgment that he never received a valid

subpoena controls: his conduct is not protected by the public policy

exception because he had no duty to testify. The unique factual nature of

the case, however, does not support this analysis.

I. Legal duties of a witness in an unemployment

compensation hearing

The General Assembly has charged the Indiana Department of

Workforce Development, or DWD, with administering unemployment

compensation benefits, including adjudication of claims for benefits and

initial appeals before an administrative law judge, or ALJ, appointed by

the department. See Ind. Code ch. 22-4-17. The legislature has also granted

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the DWD authority to develop binding administrative rules governing

these appeal hearings. I.C. § 22-4.1-3-3 (1994); see generally 646 Ind. Admin.

Code 5-10 (governing “Appellate Procedure” for DWD). Under the rules

adopted by the DWD, unemployment hearings are “conducted

informally,” allowing parties to present evidence supporting their claims

under relaxed procedural and evidentiary rules. 646 I.A.C. 5-10-5(a)

(2011); see, e.g., Id. § 5(b) (“Hearsay evidence that is not admissible under a

recognized hearsay exception may be admitted, but shall not be entitled to

the same evidentiary weight as direct testimony.”). As a gap-filler,

however, the regulations default to rules established in the Indiana Rules

of Trial Procedure and the Indiana Rules of Evidence. Id. § 5(a).

But unlike in a traditional civil case, the authority to issue subpoenas

rests solely with the ALJ in unemployment compensation hearings, and a

party must request a subpoena before a hearing. I.C. § 22-4-17-7 (2006);

646 I.A.C. 5-10-13 (“Whenever the attendance of a witness . . . is desired…

the party must request the issuance of a subpoena. The request must be…

directed to the clerk of the administrative law judge.”); cf. Ind. Trial Rule

45(A)(2) (allowing attorneys to issue subpoenas). “The request will be

granted or denied at the discretion of the administrative law judge” and

requires “a showing of necessity.” 646 I.A.C. 5-10-13 (2011). Once a party

files a timely request, “a subpoena, or a denial of a request for a subpoena,

shall be served on all interested parties, by mail, by the clerk of the

administrative law judge.” Id. (emphases added).

First, since the DWD has not adopted any contrary or more specific

rules about an individual’s responsibilities while being served, we can

assume the unemployment appeals procedure incorporates Trial Rule

4.16, which governs service of process. See 646 I.A.C. 5-10-5(a) (providing

that “in general,” trial rules serve as gap-fillers governing the agency’s

adjudicative process). Under Indiana Trial Rule 4.16, individuals served

with process must cooperate with the service and must not knowingly

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evade it. 1 Ind. Trial Rule 4.16 (“It shall be the duty of every person being

served under these rules to cooperate, accept service, comply with the

provisions of these rules . . . .”) (emphasis added). By definition, Trial Rule

4.16—a rule that applies to a party “being served”—does not predicate the

duty on knowledge that the underlying document served is valid in all

technical aspects. Indeed, during service of process, there ordinarily is not

time for a person to read a subpoena and reach that determination. It is

only after one has already fulfilled his duty to cooperate with service that

he would have opportunity to examine the contents and language of the

subpoena.

Second, once subpoenaed by a hearing officer, an individual must, by

statute, comply with the subpoena, I.C. § 22-4-17-8 (2006) (failing to obey

an “order of the court may be punished by said court as a contempt

thereof”), and he ultimately commits a misdemeanor if he refuses to obey,

I.C. § 22-4-34-5 (2006). These statutes establish that testifying under

subpoena meets the definition of a legal duty protected under

McClanahan. See 517 N.E.2d at 392–93.

Third, a witness in an unemployment hearing has a clear statutory duty

to tell the truth upon taking the stand, since he will be criminally liable for

giving knowingly false answers or “fail[ing] to disclose a material fact[ ] to

prevent or reduce the payment of benefits to any individual entitled.” I.C.

§ 22-4-34-2 (1978); see also I.C. § 22-4-17-9 (2006) (“No person shall be

excused from attending and testifying or from producing [documents],

and other records before . . . an [ALJ] . . . in obedience to the subpoena. . .

on the ground that the testimony or evidence, documentary or otherwise,

required of the person may tend to incriminate the person or subject the

person to a penalty or forfeiture. . . . Any testimony or evidence . . . shall

be deemed a communication presumptively privileged.”). Since the

1Under Trial Rule 45, “[s]ervice of a subpoena . . . may be made in the same manner as

provided in . . . Rule 4.16.” Ind. Trial Rule 45(C).

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witness is under a duty to testify honestly, he also cannot be fired based

merely on the truthful content of his testimony. In other words, an

employer cannot fire an employee for refusing to lie or remain silent on

the stand. In sum, once a witness is under oath, he must answer questions

honestly and he generally cannot refuse to answer questions by either

remaining silent or attempting to leave the stand.

Although we find no “clear statutory expression of a right or a duty,”

Baker, 917 N.E.2d at 654, to appear voluntarily at unemployment hearings

without a subpoena’s coercion, we agree with the dissenting opinion

below: in our adjudicative system, accurate witness “testimony is essential

to the process, to the parties and to correct decision-making,” Perkins v.

Mem’l Hosp. of South Bend, 121 N.E.3d 1089, 1094 (Ind. Ct. App. 2019)

(Kirsch, J., dissenting), vacated. Coworkers are often the only non-

interested party able to provide or verify facts critical to the

unemployment benefits adjudicative process. But it is the province of the

legislature to expressly provide statutory protection for such voluntary

testimony by at-will employees. See, e.g., Paul Stieler Enterprises, Inc. v. City

of Evansville, 2 N.E.3d 1269, 1277 (Ind. 2014) (“The right to legislate is

vested exclusively in the Legislature.”).

In sum, even absent an explicit statutory protection, in the context of

an unemployment hearing, a witness first has a clear duty to cooperate

with service of process from the moment he first believes he is being

served with a subpoena. Second, once a witness has been subpoenaed by

the hearing officer, he has a duty to appear and testify. And third, once a

witness is testifying under oath, he has a duty to answer truthfully and

generally cannot refuse to answer questions or leave the hearing to avoid

questioning. Since he would be personally responsible for violating any of

these duties, the person giving testimony at an unemployment hearing

may be protected by the public policy exception to the at-will employment

doctrine.

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II. Perkins’s compliance with his legal duties

Perkins’s decision to testify at the unemployment hearing implicates all

three of his legal duties at different points throughout the day of the

hearing. Viewing the facts in Perkins’s favor, it is possible to conclude that

he was complying with these distinct duties when he attended the hearing

and provided testimony.

A. Perkins complied with his duty to “cooperate” with

service by appearing at the unemployment office.

Perkins contends that he went to the unemployment hearing because

he believed he would be given the subpoena at the hearing. 2 Indeed,

Perkins’s counsel—who also represented the coworker-claimant in the

underlying unemployment hearing—elaborated that in these hearings, it

was regular practice for an ALJ to “provide [the subpoena] on the day of

[the] hearing.” Appellant’s App., p.282.

Waiting until the day of the hearing to rule on a subpoena request

would violate the hearing procedures adopted by the DWD because the

regulations, in effect at the time, required the ALJ to provide “interested

parties” with a written, mailed decision on a subpoena request before the

hearing. 646 I.A.C. 5-10-13 (2011) (“The request must be made in time for

the subpoena to be issued, and served, prior to the time and date of the

hearing.”). We cannot definitively say whether it was standard practice to

wait until the hearing to decide on these requests, but ample evidence

2To be sure, Perkins could also have reasonably concluded that the lack of required

notification meant he was not under subpoena. But given the limited time between the

subpoena request and the hearing date, he could have also concluded the request was delayed

or lost in the mail. Because Perkins was told a copy of the subpoena would be waiting for him

at the hearing location, his decision was a reasonable attempt at compliance with service. The

act of going to the hearing office is no more grounds for termination than if Perkins had

instead used his lunch break to check his home mailbox for the subpoena.

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suggests that, in this instance, a written decision on the subpoena request

was not properly sent as the DWD regulation requires before the hearing.3

If this decision were issued as required, Perkins would have known

beforehand whether he was, in fact, under subpoena. We see no reason

why the ALJ’s non-compliance with the written regulation should

unilaterally benefit Memorial.

Perkins maintained contact with his former coworker Bradley, the

requesting party, until the morning of the hearing. Despite his efforts,

Perkins was left in a bind: the ALJ had not yet provided the required

notification of his decision—issuing a subpoena or a notification denying

the request—and Perkins had been told by the requesting party that a

subpoena would be waiting for him at the hearing. Memorial contends

that it could fire Perkins for appearing voluntarily without a subpoena in

hand, but such a simplistic view ignores that Perkins came to the hearing

in an attempt to comply with his duty “to cooperate” with service of a

subpoena under Trial Rule 4.16. We cannot expect a witness cooperating

with service to decide on the underlying subpoena’s validity until he has a

chance to examine it. Since any witness attempting to dutifully comply

with service must cooperate before the validity of the underlying

subpoena is clear, we must consider the reasonableness of his belief given

3The fact that the applicable administrative code section was later updated to remove the

requirement that a subpoena be mailed lends further support to Perkins’s contention that

subpoenas were sometimes provided at the hearing. See 646 I.A.C. 5-10-13(c) (“A subpoena, or

a denial of a request for a subpoena, shall be served on all interested parties by the clerk of the

administrative law judge.”) This observation is not a criticism of the ALJ—we know there

may be case load constraints or other considerations that made the written regulations

unworkable. Still, this case illustrates that there can be real consequences when actual practice

differs from what the written procedure requires.

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the information known prior to service. 4 Unlike the plaintiff in Baker—

who wrongly believed he had acquired a duty through a purported

conflict within Indiana’s statutory scheme, 917 N.E.2d at 655–56—

Perkins’s choice to attend the hearing can be viewed as a reasonable

attempt to fulfill a clearly defined and applicable duty to cooperate with

service. Like in Frampton, 260 Ind. at 253, 297 N.E.2d at 428, a “critically

important public policy,” is at issue: the integrity of our system of

administrative adjudications depends on witnesses who are willing to act

reasonably in compliance with their duty to cooperate with service.

B. Perkins could still have been compelled to testify

without a physical subpoena.

Although Perkins could not be fired for his decision to come to the

unemployment hearing in compliance with his duty to cooperate with

service, this duty no longer applied once the ALJ told Perkins that a

subpoena “wasn’t needed.” Appellant’s App., p.121. Perkins’s duty to

comply with service under Trial Rule 4.16 evaporated the moment Perkins

knew he would not be served.

Since Perkins was already at the hearing when he found out he had not

been subpoenaed, the next question is whether Perkins was free to leave

the hearing without facing legal jeopardy once he arrived. Contrary to the

reasoning of the opinion below, the mere fact that Perkins was not handed

a physical subpoena does not settle the question of whether he would

4To be clear, we are not endorsing a broad distinction between reasonable, but mistaken,

beliefs of facts as opposed to mistakes of law. Rather, we merely hold that the unique nature

of the duty “to cooperate” with a subpoena requires us to defer to Perkins’s reasonable belief.

Outside the unique context of a subpoena, we do not today create a general rule that a

reasonable mistake of fact always brings an employee’s actions within the protection of the

public policy exception. If this opinion created such a general rule, as the dissent contends,

there would be no need for Perkins to provide evidence at trial that he would have been

compelled to testify once he learned at the hearing that there was no subpoena. See Post, at 2.

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have faced legal jeopardy if he had left the hearing. See Perkins, 121 N.E.3d

at 1093–94 (“[W]e need not decide whether issuance of a subpoena would

have created a duty for Perkins to testify because Perkins admits that he

was never issued a subpoena. Absent the exercise of a statutory right or

duty, the public policy exception does not apply.”) (footnote omitted). The

ALJ undoubtedly had the power to compel Perkins’s testimony at any

moment through Indiana Code section 22-4-17-7, and Perkins would have

been instantly subject to contempt of court for attempting to leave.

We do not know conclusively why the ALJ thought that a subpoena

“wasn’t needed,” but determining whether Perkins faced legal jeopardy is

the critical inquiry here. For instance, if the ALJ did not issue a subpoena

because the applicable subpoena standard was not met, and Perkins chose

to testify anyway, then his decision to testify was voluntary and should

not be entitled to protection. See Baker, 917 N.E.2d at 656 (holding that a

plaintiff’s mistaken belief of law was insufficient to protect him from

termination). If, on the other hand, the ALJ decided to dispense with the

formality of writing out a subpoena—given that Perkins was already

present—then Perkins was under a constructive duty to testify because a

subpoena would have been issued the moment he tried to leave without

testifying. The integrity of the unemployment adjudicative system

requires that protection be provided if Perkins was under such a

constructive duty to testify. See, e.g., McClanahan, 517 N.E.2d at 393

(“Depriving [an employee] of any legal recourse under these

circumstances would encourage criminal conduct by both the employee

and the employer.”).

Based on this record, we cannot definitively conclude that Perkins

voluntarily chose to testify. Despite Memorial’s decision to leave the

hearing uncontested, Perkins was still called to help establish a prima facie

case for unemployment benefits. The applicable regulations require that

the ALJ “shall” issue a subpoena “upon a showing of necessity.” 646

I.A.C. 5-10-13. Because Perkins’s testimony was needed to establish this

prima facie case, we can surmise that this necessity requirement had been

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met. Given these circumstances, it is unclear why the ALJ did not issue the

subpoena after it had been properly requested five days before the

hearing. Perhaps, with the witness present the ALJ merely decided to

dispense with formal paperwork to save time.

Based on the facts known, if Perkins tried to leave the hearing before

being sworn, he may have immediately been handed a subpoena

compelling him to testify. We will not automatically hold the ALJ’s failure

to comply with the regulations against a witness attempting to comply

with his statutory duties. These unsettled factual questions mean

Memorial Hospital has not established that Perkins was free to leave

before being sworn in as a witness.

C. After Perkins took the stand, he was under a duty to

testify completely and honestly.

Once on the stand, Perkins could not have left the hearing or lied

without facing legal consequences. Regardless of whether Perkins

voluntarily took the witness stand, he was under a statutory duty to

testify honestly and answer all questions once seated. See I.C. § 22-4-34-2;

I.C. § 22-4-17-9. Since Perkins was under a duty once on the witness stand,

Memorial could not have fired him for testifying truthfully. Consequently,

further inquiry should focus narrowly on the time period between when

Perkins was informed he was not under subpoena and when he physically

took the witness stand.

Conclusion

We continue to strongly presume at-will employment. See Baker, 917

N.E.2d at 653. And we will not create a new exception for voluntary

witness testimony at unemployment hearings. The ability to compel

testimony of a third-party witness, however, is “a critically important

public policy.” Frampton, 260 Ind. at 253, 297 N.E.2d at 428. So testimony

compelled by a subpoena or other statutory duty is protected under the

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public policy exception to at-will employment. Since ensuring witnesses

appear is vital to the adjudicative process, we will not ordinarily hold the

witness liable for technical or procedural defects in the hearing officer’s

order. Allowing employers to fire an employee merely because of a small

technical mistake by the hearing officer would create the very “fear of

retaliation” that the Frampton Court contemplated. Id. To be sure,

however, this case shows why it is best practice for coworker-witnesses to

confirm they have a subpoena in hand before testifying.

Viewing the evidence in the light most favorable to Perkins, we can

view his decision to attend the unemployment hearing as a reasonable

attempt at cooperation with service of process. But we cannot conclude,

given the outstanding subpoena request, that Perkins did not face legal

jeopardy if he refused to testify once at the hearing. To prevail on

summary judgment, Memorial needed to show that Perkins voluntarily

chose to testify and that he would not have been immediately compelled

to testify if he had refused. We reverse and remand for further

proceedings.

Rush, C.J., and David and Goff, JJ., concur.

Slaughter, J., dissents with separate opinion.

ATTORNEYS FOR APPELLANT

Shaw R. Friedman

Nelson G. Pichardo

Friedman & Associates, P.C.

LaPorte, Indiana

ATTORNEYS FOR APPELLEE

Jeffery A. Johnson

Robert J. Palmer

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May ● Oberfell ● Lorber

Mishawaka, Indiana

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Slaughter, J., dissenting.

I respectfully dissent. The trial court was correct to enter judgment in

favor of the defendant, Memorial Hospital of South Bend. And the court

of appeals was correct in affirming that judgment under well-settled

principles of Indiana’s employment-at-will doctrine. Thus, I would deny

transfer and leave the appellate court’s well-crafted decision undisturbed.

But because our Court has elected to weigh into the merits here, I write

separately to explain why I believe our Court’s disposition is not only

wrong but needlessly blurs what had been a clear, bright-line rule.

Indiana has long been an employment-at-will state. Generally, that

means either employer or employee can terminate the employment

relationship at any time, for any reason, or for no reason at all. Over time,

we have recognized three exceptions to this general rule. The only

exception at issue here is our so-called “public-policy” exception—where

an employee is fired for exercising a statutory right or duty.

We first recognized this exception in Frampton v. Central Indiana Gas

Company, 260 Ind. 249, 297 N.E.2d 425 (1973). There, we held that the

plaintiff stated a valid claim for retaliatory discharge by alleging she was

fired for seeking workers-compensation benefits. As we concluded,

under ordinary circumstances, an employee at will may be

discharged without cause. However, when an employee is

discharged solely for exercising a statutorily conferred right[,]

an exception to the general rule must be recognized.

Id. at 253, 297 N.E.2d at 428.

Unlike the statutory right in Frampton, Forrest Perkins had no such

right to testify at his co-worker’s unemployment-benefits hearing. Nor, on

this record, did Perkins have a duty to testify at that hearing because no

legal process compelled his attendance. Thus, I would hold that Perkins

fails to satisfy our narrow public-policy exception to the employment-at-

will doctrine—meaning the Hospital was entitled to fire him, and the trial

court was right to enter judgment in the Hospital’s favor.

To be clear, I have no quarrel with the Court’s observations that a

prospective witness to a judicial or administrative proceeding has “a clear

duty” to cooperate and accept service of process; that a witness under

subpoena must appear and give testimony; and that a witness under oath

must testify truthfully. I also agree that terminating an employee who tries

or succeeds in fulfilling these legal duties may implicate our public-policy

exception. But the Court takes these acknowledged duties and imposes an

additional duty on would-be witnesses with no legal basis for doing so. A

witness’s duty to cooperate and accept service is modest. It forbids the

witness from evading service, but it does not require the witness to take

affirmative steps to track down the process server. No one served—or

tried to serve—Perkins with a subpoena. Thus, there would have been no

basis for charging an empty-handed Perkins with evading service had he

refused to attend the co-worker’s benefits hearing. Because Perkins never

received a subpoena, he had no duty to appear at the hearing, much less

to testify. That alone should have defeated Perkins’s invocation of the

“right-or-duty” exception to our employment-at-will doctrine.

Yet the Court excuses the lack of a subpoena by observing that Perkins

believed he had to appear and testify—an error the Court describes as one

of fact, in contrast to an error of law, which we have held does not qualify

a plaintiff for relief under our public-policy exception. See Baker v. Tremco

Inc., 917 N.E.2d 650, 655–56 (Ind. 2009). The Court’s proposed distinction

is not persuasive for two reasons. First, I see no justification for treating

mistakes of fact differently than mistakes of law under this exception, and

the Court offers none. Second, and more fundamentally, I see no

meaningful way for distinguishing a mistake of fact from one of law.

What the Court characterizes as Perkins’s mistake of fact (that he would

receive a subpoena at the hearing) could also be viewed as a mistake of

law (that he was duty-bound to attend the hearing without having

received a subpoena). These competing characterizations strike me as

opposite sides of the same coin, and I can discern no intelligible basis for

treating Perkins’s mistake as one versus the other. Yet the Court attributes

outcome-determinative significance to this elusive distinction—as if this

purported difference somehow makes all the difference.

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 2 of 3

The Court, apparently recognizing the difficulty of classifying this and

other employee errors as mistakes of fact versus mistakes of law, insists it

is not announcing a “broad distinction” between such mistakes. Rather,

the Court says, it is merely recognizing the “unique nature of the duty ‘to

cooperate’ with a subpoena”, which the Court holds requires deference

“to Perkins’s reasonable belief” of his duty to cooperate. Of course, in both

fact and law, there was no subpoena, and thus no duty of any kind arose

concerning it—no duty to cooperate, no duty to attend the hearing, no

duty to testify at the hearing. I would hold, as a matter of law, that Perkins

did not (and could not) have a reasonable belief of a duty to cooperate

with an unissued, non-existent subpoena. With no such duty, the public-

policy exception to Indiana’s employment-at-will doctrine does not apply.

For these reasons, I would either deny transfer or summarily affirm the

court of appeals’ opinion.

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 3 of 3