Justices rule on constructive discharge issue

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The Indiana Supreme Court decided Tuesday that a claim for constructive retaliatory discharge falls within the state's public policy exemption to the employment-at-will doctrine.

The opinion, Brennan Baker and Moisture Management v. Tremco Inc. and Rick Gibson, No. 29S02-0902-CV-65, addressed only three of five issues Brennan Baker raised on appeal: constructive retaliatory discharge; whether a noncompetition agreement is unenforceable because Baker's new company actually competes with a subsidiary of his former employer, Tremco; and whether a statement from his former supervisor, Rick Gibson, was slanderous per se so as to create an actionable defamation claim.

Baker worked for Tremco selling construction and maintenance of roofing systems. After 13 years with the company, he resigned following a dispute regarding the company's sales and bidding practices, believing they were illegal. Baker then formed Moisture Management, which provided a service similar to one provided by a Tremco subsidiary.

Baker sued Tremco for a declaration the noncompete covenant he signed is unenforceable and also asserted claims for wrongful termination, defamation, and violation of Indiana's blacklisting statute. Tremco counterclaimed seeking enforcement of the covenant and said that Baker breached his contract. The trial court granted summary judgment in favor of Tremco and Gibson and issued injunctive relief against Baker and his new company.

Baker claimed when he told Tremco he didn't want to participate in the company's allegedly unlawful pricing practices, he was advised he would be fired, so instead, Baker resigned. The Supreme Court concluded that a constructive retaliatory discharge falls within the ambit of the narrowly drawn public policy exception to the employment-at-will doctrine.

The reason for the discharge must fit within the exception as recognized by Frampton v. Cent. Ind. Gas Co., 260 Ind. 249, 297, N.E.2d 425 (1973) and McClanahan v. Remington Freight Lines Inc., 514 N.E.2d 390, 392-93 (Ind. 1988); Baker's claim isn't within the ambit of the recognized exceptions, wrote Chief Justice Randall T. Shepard.

"At its heart, Baker's constructive discharge claim rest on his allegation that the roofing activities conducted under this statutory regime (Indiana Code Section 20-20-1-1) contravene other statutes about bidding public projects," he wrote. "We can be agnostic on such a question of statutory construction and still conclude as a matter of common law that it is not on par with the rights and obligations recognized as a basis for discharge complaints in Frampton and McClanahan."

Using Ohio law and Baker's deposition to settle the noncompete issue, the justices affirmed the trial court finding that Baker was competing for business he had been conducting for Tremco with his new company, Moisture Management.

Finally, the high court addressed Baker's claim that Gibson made defamatory statements per se when he told someone Baker had engaged in inappropriate sales practices. Gibson's statement was far too vague to conclude that they were "so obvious and naturally harmful that proof their injurious character can be dispensed with," wrote the chief justice.


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  1. I commend Joe for standing up to this tyrant attorney! You ask why? Well I’m one of David Steele victims. I was in desperate need of legal help to protect my child, David saw an opportunity, and he demanded I pay him $3000. Cash. As I received motions and orders from court he did nothing! After weeks of emails asking him to address the legal issues, he responded by saying he was “on vacation “and I should be so lucky to have “my attorney” reply. Finally after lie on top of lie I asked for a full refund, which he refused. He then sent me “bills” for things he never did, such as, his appearance in the case and later claimed he withdrew. He never filed one document / motion for my case! When I finally demanded he refund my money he then turn to threats which scared my family for our lives. It seem unreal we couldn’t believe this guy. I am now over $100,000 in debt digging out of the legal mess he caused my family. Later I was finally able to hire another law office. I met Joe and we worked diligently on my case. I soon learn Joe had a passion for helping people. As anyone who has been through a legal battle it is exhausting. Joe was always more than happy to help or address an issue. Joe was knowledgeable about all my concerns at the same time he was able to reduce the stress and anxieties of my case. He would stay late and come in early, he always went the extra mile to help in any way he could. I can only imagine what Joe and his family has been through, my prayers go out to him and all the victims.

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  4. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  5. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise