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COA upholds judgment in favor of employer in wrongful termination suit

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The Indiana Court of Appeals affirmed summary judgment in favor of the Indiana Department of Insurance in a lawsuit filed by a former employee claiming wrongful termination.

In Paul K. Ogden v. Stephen Robertson, et al., No. 49A05-1101-CT-45, Paul Ogden was hired in November 2006 as a division manger in the title division of IDOI. His job was classified as a grade executive broad band position. He worked under the supervision of chief deputy commissioner Carol Mihalik. Within months, Ogden verbalized frustrations to Commissioner James Atterholt regarding Mihalik’s supervision.

At one point, there was confusion over the preparation of insurance bulletins, and Ogden interpreted his conversation with Atterholt to mean that he was to work around Mihalik to develop the bulletins. Mihalik sent Ogden a “counseling letter” in September 2007, claiming he violated IDOI polices in drafting the bulletins and that she and Atterholt need to see bulletins before they are disseminated. The letter was not classified as a disciplinary measure.

Ogden also met with State Personnel Department employees to file a formal complaint against Mihalik alleging many violations, including personnel and legal ones. An investigation was opened. Ogden also sent a memorandum to Atterholt asking that the Title Insurance Division be removed from Mihalik’s unit so that it could operate under a different chief deputy and that the division be moved to a different floor.

As a result of the letter, Ogden was given two options by IDOI officials – resign or be terminated for being “out of line” requesting reorganization of the division. Ogden agreed to resign. He then filed the suit alleging violations of the First and 14th amendments, Article I, Section 9 of the Indiana Constitution, the Whistleblower Law, Indiana Code 4-15-10-5, and state due process. The trial court granted summary judgment to the IDOI defendants, finding that the Whistleblower Law provided no private cause of action for which Ogden could seek relief through a civil lawsuit, Ogden’s memorandum wasn’t protected speech under the state constitution, and that memorandum was not the motivating factor in his forced resignation.

The Indiana Court of Appeals upheld summary judgment, finding that the memorandum wasn’t protected speech under the Indiana Constitution; that Ogden wasn’t entitled to due process protections under Indiana personnel policy and Executive Order 05-14, which addresses when an employee may file a complaint regarding dismissal; and that the trial court did not have subject matter jurisdiction over his claim that he was wrongfully terminated.

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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