Despite ‘not good law’ dissent, COA affirms ruling against fired worker

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A former hospital police officer who wrongly believed he had been subpoenaed to testify at an unemployment hearing and was subsequently fired has lost his appeal of judgment in favor of his former boss, with a majority of the Indiana Court of Appeals finding the officer could not overcome the at-will employment doctrine. But a dissenting judge said the majority’s ruling is bad law.

In Forrest Perkins v. Memorial Hospital of South Bend, 18A-CT-1340, Forrest Perkins was fired from his job as a hospital police officer in June 2015. According to Memorial Hospital of South Bend, Perkins was fired because he repeatedly stole food from the hospital cafeteria, though he had never been disciplined before his termination.

About a month before he was fired, Perkins left his shift at the hospital early to testify at an unemployment benefits appeal for a former hospital co-worker. Perkins believed he had been subpoenaed to testify and that his subpoena would be presented at the hearing, but he never received the subpoena. Meanwhile, Perkins’ supervisors figured out where Perkins had gone by driving to the hearing location and spotting Perkins’ car in the parking lot.

In September 2016, Perkins filed a wrongful termination suit against the hospital, alleging he was fired because he had testified at the benefits hearing. The hospital responded with a summary judgment motion, arguing Perkins was an at-will employee who was terminated for a valid, lawful reason. Though the St. Joseph Superior Court accepted as true the claim that Perkins was fired for testifying, the court nevertheless granted summary judgment to the hospital because it determined Perkins did not qualify for an exception to the at-will doctrine.

A divided Indiana Court of Appeals upheld that judgment Thursday, specifically rejecting Perkins’ argument that the public policy exception to the at-will doctrine should apply.

Writing for a majority joined by Judge Elizabeth Tavitas, Judge Robert Altice said Perkins did not have a statutory right to testify at the benefits hearing, nor did he ever receive the subpoena. Those facts distinguish the instant case from Frampton v. Cent. Ind. Gas. Co., 297 N.E.2d 425 (Ind. 1973), in which the public policy exception was found to be applicable.

Instead, Altice and Tavitas likened Perkins’ situation to Baker v. Tremco, Inc., 917 N.E.2d 650 (Ind. 2009), in which an employee mistakenly believed his employer’s competitive bidding practices were illegal and, thus, refused to participate in them.

“Like the employee’s honest belief in Baker, Perkins’s honest belief that he was subpoenaed to testify at an unemployment hearing is ‘not on par with the rights and obligations’ that have been recognized as warranting an exception to the at-will employment doctrine,” Altice wrote. “Perkins has not provided us with any other compelling reason to warrant judicial expansion of the public policy exception to the at-will employment doctrine.

“Given the limited nature of the recognized exceptions to the at-will employment doctrine, we must therefore conclude that Perkins’s sincere yet mistaken belief that he had been subpoenaed does not fall within the public policy exception,” Altice continued. “The trial court did not err in granting summary judgment in favor of the Hospital.”

But in a dissenting opinion, Judge James Kirsch noted the trial court found the hospital’s reason for Perkins’ termination — theft of cafeteria food — was pretextual.

“Assuming the trial court was correct in finding that Memorial Hospital’s stated reason for termination was false, it has suffered no consequence from its wrongful behavior,” Kirsch wrote. “On the other hand, Officer Perkins testified truthfully and suffered a very significant consequence: he was terminated from his employment.

“Common sense tells us that this is not good law.”

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