John Fenicle v. Indiana School for the Deaf (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

FILED

regarded as precedent or cited before any

court except for the purpose of establishing Dec 23 2020, 9:54 am

the defense of res judicata, collateral CLERK

Indiana Supreme Court

estoppel, or the law of the case. Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES

Sandra L. Blevins Curtis T. Hill, Jr.

Jamie A. Maddox Attorney General

Betz + Blevins Benjamin M. L. Jones

Indianapolis, Indiana Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

John Fenicle, December 23, 2020

Appellant-Plaintiff/Petitioner, Court of Appeals Case No.

20A-CT-940

v. Appeal from the

Marion Superior Court

Indiana School for the Deaf; The Honorable

Indiana School for the Deaf Timothy W. Oakes, Judge

Board; Ed Clere, Individually Trial Court Cause No.

and in his Official Capacity; Ann 49D02-1707-CT-26570

Reifel, Individually and in her

Official Capacity; Kelly

Dibenedetto, Individually and in

her Official Capacity; Traci

Tetrick, Individually and in her

Official Capacity; Ray Furner,

Individually and in his Official

Capacity; Lucy Witte,

Court of Appeals of Indiana | Memorandum Decision 20A-CT-940 | December 23, 2020 Page 1 of 13

Individually and in her Official

Capacity; Dr. David Geeslin,

Individually and in his Official

Capacity; The State Employees’

Appeals Commission; and

Gabriel Paul, Individually and in

his Official Capacity,

Appellees-Defendants/Respondents

Vaidik, Judge.

Case Summary

[1] John Fenicle appeals the trial court’s judgment against him in this action arising

from his termination as a teacher at the Indiana School for the Deaf (“the

School”). We affirm.

Facts and Procedural History

[2] Fenicle began working as a teacher for the School in 2000. He was an

“unclassified” state employee. See Appellant’s App. Vol. IV p. 14. Such an

employee is “an employee at will and serves at the pleasure of the employee’s

appointing authority” and “may be dismissed, demoted, disciplined, or

transferred for any reason that does not contravene public policy.” Ind. Code §

4-15-2.2-24.

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[3] Late 2015 was a tumultuous time for Fenicle. He filed multiple complaints

claiming students in his classes were being disruptive, and the mother of one of

those students—another employee of the School—filed her own complaint

against him. In December 2015, the School suspended Fenicle without pay

because “[a] complaint, which involves students, has recently been lodged, and

requires investigation.” Appellant’s App. Vol. IV p. 18. Three weeks later, the

School terminated Fenicle’s employment in a letter that stated, in part:

As stated in the ISD Staff Handbook, a safe, secure, inviting and

healthy school environment is essential to learning. All students

have a right to have their individual needs met through learning

opportunities that promote optimum success and independence.

Your failure to provide students with this required support after

repeatedly being given the direction and tools to do so is

unacceptable. This is the reason for this disciplinary action.

Id. at 19. Students and behavioral specialists had reported that in Fenicle’s

classes students “rarely used a textbook,” “[t]ests did not look similar to what

they learned in class,” and Fenicle “was on the computer all the time,” “rarely

helped” students, “often gave wrong answers,” “ignored” students, “moved on

with the lessons without pausing to attend students’ questions about math

problems,” and would start “a new lesson one day and then drop the new

lesson [the] next day.” Appellant’s App. Vol. V pp. 219-22. A school

psychologist reported Fenicle failed to meet with him about one student’s

Individualized Education Program and resisted providing accommodations to

another student. Id. at 229.

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[4] Fenicle denied the allegations against him and appealed his termination to the

State Employees’ Appeals Commission (SEAC). He alleged his termination

was “unlawful” because it was not really based on his job performance but

rather on (1) the fact he “repeatedly complained to individuals” at the School

“regarding the behavioral issues he was confronting” with certain students and

(2) “his work with the Indiana Department of Education on the ASL

[American Sign Language] Assessment,” which was against the wishes of

Interim Principal Dawniela Patterson. Appellant’s App. Vol. IV pp. 12-13.1 He

also claimed his “due process rights were violated by the Indiana School for the

Deaf based upon its lack of a proper investigation involving allegations made by

students against [him] as well as a lack of investigation of the complaints [he]

made against students.” Id. at 13. In addition, he claimed the School “failed to

pay all monies owed” to him. Id. The School eventually moved for summary

judgment, which the SEAC granted in June 2017.

[5] Fenicle then filed a combined complaint and petition for judicial review in

Marion Superior Court, naming eleven defendants: the School; the School

Board; six members of the School Board in their individual and official

capacities; Dr. David Geeslin, the School’s CEO/Superintendent, individually

and in his official capacity; the SEAC; and the SEAC’s administrative law

judge, Gabriel Paul, individually and in his official capacity. Count I was a

1

Fenicle also claimed he was terminated because he is deaf, in violation of the Americans with Disabilities

Act. He later abandoned that claim.

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claim under 42 U.S.C. § 1983, alleging the defendants “intentionally and/or

recklessly failed to employ sufficient procedural safeguards to ensure the

adequate preservation of Mr. Fenicle’s property interest in his employment,”

Appellant’s App. Vol. II p. 119, in violation of Fenicle’s rights to procedural

and substantive due process under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. Count II was a petition for

judicial review of the SEAC’s decision.

[6] On Fenicle’s Section 1983 claim, the institutional defendants—the School, the

School Board, and the SEAC—moved for dismissal, and the individual

defendants moved for judgment on the pleadings. The trial court granted both

motions. Fenicle and the School then filed briefs on the petition for judicial

review. The trial court denied Fenicle’s petition, allowing the SEAC’s decision

to stand.

[7] Fenicle now appeals.

Discussion and Decision

[8] Fenicle contends the trial court erred by granting the individual defendants

judgment on the pleadings on his claims under Section 1983 (he does not

challenge the dismissal of his Section 1983 claims against the School, the

School Board, and the SEAC). He also appeals the trial court’s denial of his

petition for judicial review of the SEAC’s decision.

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I. Section 1983

[9] We review de novo a trial court’s ruling on a motion for judgment on the

pleadings. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010). “We

accept as true the well-pleaded material facts alleged in the complaint, and base

our ruling solely on the pleadings.” Id. Such a motion is to be granted only

where it is clear from the face of the complaint that under no circumstances

could relief be granted. Id. The moving party is deemed to have admitted the

well-pleaded facts favoring the nonmovant, and we will draw all reasonable

inferences in favor of the nonmovant. Bettenhausen v. Godby, 878 N.E.2d 1277,

1278 (Ind. Ct. App. 2008).

[10] In his claim under Section 1983, Fenicle alleged the defendants violated his

rights to procedural due process and substantive due process under the Due

Process Clause of the Fourteenth Amendment to the United State Constitution.

The Due Process Clause provides that no state shall “deprive any person of life,

liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, §

1. As a threshold matter, then, a plaintiff claiming a violation of the Due

Process Clause—either the procedural component or the substantive

component—must have been deprived of “life, liberty, or property.” See

Bankhead v. Walker, 846 N.E.2d 1048, 1053 (Ind. Ct. App. 2006) (procedural

due process); Swami, Inc. v. Lee, 841 N.E.2d 1173, 1180 (Ind. Ct. App. 2006)

(substantive due process), trans. denied. Fenicle claims he had, and was deprived

of, a “property interest in his employment.” Appellant’s Br. p. 32. The

defendants argue he had no such interest. We agree with the defendants.

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[11] The United States Supreme Court has explained that to have a property interest

in employment, “a person clearly must have more than an abstract need or

desire for it. He must have more than a unilateral expectation of it. He must,

instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972). Property interests are not created by

the federal constitution. Id. “Rather they are created and their dimensions are

defined by existing rules or understandings that stem from an independent

source such as state law—rules or understandings that secure certain benefits

and that support claims of entitlement to those benefits.” Id.

[12] Again, Fenicle was an “unclassified” employee of the state, and such an

employee is “an employee at will and serves at the pleasure of the employee’s

appointing authority” and “may be dismissed, demoted, disciplined, or

transferred for any reason that does not contravene public policy.” I.C. § 4-15-

2.2-24. “As a general rule, an employee at will has no property interest in

further employment.” Phegley v. Ind. Dep’t of Highways, 564 N.E.2d 291, 295

(Ind. Ct. App. 1990), trans. denied. The defendants assert that as an unclassified,

at-will employee, Fenicle “had no property interest in his employment

protected by the due process clause,” and his “allegations concerning [the

School’s] investigation and its procedure for his dismissal warrant no relief.”

Appellees’ Br. p. 28. In his reply brief, Fenicle offers no response to this

argument. Because Fenicle did not have a property interest in his employment

and has not otherwise alleged a deprivation of life, liberty, or property, his

rights under the Due Process Clause of the Fourteenth Amendment were not

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implicated, let alone violated, by his termination. Therefore, we affirm the trial

court’s grant of judgment on the pleadings on his claim under Section 1983.2

II. Petition for Judicial Review

[13] Fenicle also contends the trial court erred by denying his petition for judicial

review of the SEAC’s decision. We review an agency action directly, applying

the same standard as the trial court and giving no deference to its decision.

Baliga v. Ind. Horse Racing Comm’n, 112 N.E.3d 731, 736 (Ind. Ct. App. 2019),

reh’g denied, trans. denied. A court can reverse an agency action only if it is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) contrary to constitutional right,

power, privilege, or immunity; (3) in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; or (5)

unsupported by substantial evidence.

Ind. Code § 4-21.5-5-14(d). “The burden of demonstrating the invalidity of

agency action is on the party to the judicial review proceeding asserting

invalidity.” Id. at (a).

[14] Fenicle argues the SEAC’s order granting summary judgment to the School and

upholding his termination was arbitrary and capricious for three reasons. First,

2

Fenicle cites the United States Supreme Court’s holding that “the liberty component of the Fourteenth

Amendment’s Due Process Clause includes some generalized due process right to choose one’s field of

private employment[.]” Conn v. Gabbert, 526 U.S. 286, 291-92 (1999). But he has only been terminated from a

single teaching position, not completely barred from the teaching “field.” He makes no argument to the

contrary.

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he says he had a “statutory duty” under the federal Individuals with Disabilities

Education Act (IDEA), 20 U.S.C. §§ 1400-1482, to ensure his students were

receiving a “free appropriate public education,” or “FAPE,” his complaints

about disruptive students were an effort to satisfy that duty, and he was

terminated for making those complaints. Appellant’s Br. p. 40. Second, he

asserts, “The School’s sham investigations of complaints made by Fenicle about

several disruptive students as well as the School’s sham investigation of a single

complaint made about Fenicle violated Fenicle’s Due Process Rights.” Id. at 43.

Third, he claims he was terminated “in retaliation for his work with the Indiana

Department of Education on the ASL Assessment.” Id. at 45. The SEAC and

the trial court rejected all three arguments, and so do we.

[15] Fenicle’s due-process claim fails for the same reason his Section 1983 due-

process claims fail: he did not have a “property interest” in his at-will

employment. See Part I, supra. Regarding his FAPE and retaliation claims, we

begin by reiterating that an unclassified state employee is “an employee at will

and serves at the pleasure of the employee’s appointing authority” and “may be

dismissed, demoted, disciplined, or transferred for any reason that does not

contravene public policy.” I.C. § 4-15-2.2-24. This follows Indiana’s

employment-at-will doctrine, “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), reh’g denied. The “public policy” exception to this

doctrine protects an at-will employee from being terminated for “exercising a

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clear statutory right or obeying a legal duty.” Perkins v. Mem’l Hosp. of S. Bend,

141 N.E.3d 1231, 1235 (Ind. 2020).

[16] In support of his claim he was terminated for trying to satisfy his alleged

statutory duty to provide his students a FAPE, Fenicle asserts:

Because Fenicle was concerned about a few select students’

disruptive behavior affecting the educational needs of the non-

disruptive students, Fenicle filed complaints about these students

beginning in November of 2015, including complaints about

Student A. In response, Student A’s mother, who is also an

employee of the School, filed an unfounded, baseless complaint

against Fenicle.

Appellant’s Br. p. 43. As an initial matter, Fenicle cites nothing in the record

indicating that Student A’s mother filed her complaint about him “in response”

to Fenicle’s complaints about the disruptive students, let alone that the School

terminated him because of those complaints. See Ind. Appellate Rule

46(A)(8)(a) (requiring that each contention in the argument section of the

appellant’s brief be supported by citations to “the Appendix or parts of the

Record on Appeal relied on”). But even if the School terminated Fenicle for

making the complaints, i.e., for trying to ensure his students were receiving a

FAPE, Fenicle has not cited any specific provision of the IDEA in support of

his claim that he, as a teacher, had a personal duty to provide a FAPE. Our

research suggests that this duty lies with the states that accept IDEA funds and

schools themselves, not individual teachers. See 20 U.S.C. § 1412(a)(1)

(providing that for “[a] State” to be eligible for assistance under the IDEA it

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must ensure “[a] free appropriate public education is available to all children

with disabilities residing in the State between the ages of 3 and 21” (emphasis

added)); Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct.

988, 999 (2017) (“To meet its substantive obligation under the IDEA, a school

must offer an IEP reasonably calculated to enable a child to make progress

appropriate in light of the child's circumstances.” (emphasis added)). Because

Fenicle has not established that he had a legal duty to provide his students a

FAPE, even if he was terminated for trying to provide a FAPE, it cannot be

said that he was terminated for “obeying a legal duty,” as required under the

public-policy exception to the employment-at-will doctrine. See Perkins, 141

N.E.3d at 1235.

[17] As for his claim he was terminated in retaliation for his work with the Indiana

Department of Education on an ASL assessment, Fenicle argues:

Although Fenicle had worked with the DOE for several years,

Ms. Patterson did not want Fenicle to work directly with the

DOE on assessments, but, instead, wanted Fenicle to only be a

representative for the School. Ms. Patterson and others at the

School wanted to create the School’s own ASL standards and

curriculum without the DOE’s involvement, and Fenicle had

worked closely with the DOE on ASL standards for years.

Fenicle’s work with the DOE, however, would jeopardize the

School’s desire to remain free from the DOE’s involvement. The

School was concerned with its accreditation status with the DOE

as the School recently admitted that it needed to work on certain

programs[.]

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Appellant’s Br. pp. 45-46 (record citations omitted). For purposes of this

discussion, we can assume Fenicle was terminated because of his work with the

DOE, as opposed to the in-class issues referenced in his termination letter. The

problem with Fenicle’s argument is it does not include a single citation to legal

authority. See App. R. 46(A)(8)(a) (requiring that each contention in the

argument section of an appellant’s brief be supported by citations to the

authorities relied on). More specifically, Fenicle fails to establish that he had a

“statutory right” or a “legal duty” to work with the DOE. See Perkins, 141

N.E.3d at 1235. Therefore, even if Fenicle was terminated because of that work,

his termination does not fall within the public-policy exception to the

employment-at-will doctrine, and the SEAC properly rejected Fenicle’s

retaliation claim.

[18] Fenicle also argues the SEAC should have ordered the School to pay him (1)

$21,087.12 for unused vacation, sick, and personal time, (2) $42.86 for one hour

of compensatory time, and (3) $6,455.04 in “spread payments” for “his

employment from August 18, 2015 to December 14, 2016,” because “[t]he

School spread Fenicle’s paychecks over 26 pay periods, rather than 19 pay

periods; thus, he has been paid less than he should have been.” Appellant’s Br.

pp. 47-48. Regarding vacation, sick, and personal time, a regulation of the State

Personnel Department provides that “[a] dismissed employee shall forfeit all

accrued sick, personal, and vacation leave.” 31 Ind. Admin. Code 5-12-3(d).

Fenicle acknowledges this regulation but contends it does not apply because he

was “unlawfully terminated.” Appellant’s Reply Br. p. 16. His claims for

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compensatory time and “spread payments” are also based on the premise that

his termination was unlawful. Appellant’s Br. pp. 47-48; Appellant’s Reply Br.

pp. 15-16. Because the SEAC correctly concluded Fenicle’s termination was not

unlawful, his claims for payment necessarily fail.

[19] Affirmed.

Bailey, J., and Weissmann, J., concur.

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