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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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  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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