Justices clash but rule for fired employee in duty-to-testify case

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Indiana Supreme Court justices split Tuesday a dispute involving an employee who was fired after testifying at an unemployment compensation hearing, with the majority reversing in his favor. A dissenting justice would have affirmed, arguing the man didn’t have a reasonable belief of a duty to cooperate with an unissued, non-existent subpoena.

Forrest Perkins, a former police officer at Memorial Hospital South Bend, wrongly believed he had been subpoenaed to testify at an unemployment hearing for a former co-worker and was subsequently fired from his job in 2015. According to the hospital, Perkins was fired because he repeatedly stole food from the hospital cafeteria, though he had never been disciplined before his termination.

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.

Ultimately, the St. Joseph Superior Court accepted as true the claim that Perkins was fired for testifying, but nevertheless granted summary judgment to the hospital after concluding that Perkins did not qualify for an exception to the at-will employment doctrine.

A split Indiana Court of Appeals affirmed, with the majority finding Perkins’ “sincere yet mistaken belief that he had been subpoenaed does not fall within the public policy exception.” A dissenting appellate judge disagreed, arguing that the decision was “not good law.”

Indiana Supreme Court justices likewise split in the case, with a majority reversing in Perkins’ favor in Forrest Perkins v. Memorial Hospital of South Bend, 20S-CT-233.  Although it found no “clear statutory expression of a right or a duty,” to appear voluntarily at unemployment hearings without a subpoena’s coercion, the majority agreed with Judge James Kirsch’s dissenting appellate opinion.

“In sum, even absent an explicit statutory protection, in the context of an unemployment hearing, a witness first has a clear duty to cooperate with service of process from the moment he first believes he is being served with a subpoena,” Justice Mark Massa wrote for the majority. “Second, once a witness has been subpoenaed by the hearing officer, he has a duty to appear and testify. And third, once a witness is testifying under oath, he has a duty to answer truthfully and generally cannot refuse to answer questions or leave the hearing to avoid questioning. Since he would be personally responsible for violating any of these duties, the person giving testimony at an unemployment hearing may be protected by the public policy exception to the at-will employment doctrine.”

Additionally, the high court concluded that though Perkins complied with his duty to “cooperate” with service by appearing at the unemployment office, he still could have been compelled to testify without a physical subpoena and was under a duty to testify completely and honestly after taking the stand.

“Viewing the evidence in the light most favorable to Perkins, we can view his decision to attend the unemployment hearing as a reasonable attempt at cooperation with service of process. But we cannot conclude, given the outstanding subpoena request, that Perkins did not face legal jeopardy if he refused to testify once at the hearing,” the majority wrote. “To prevail on summary judgment, Memorial needed to show that Perkins voluntarily chose to testify and that he would not have been immediately compelled to testify if he had refused.”

Dissenting in a separate opinion from the majority’s reversal and remand, Justice Geoffrey Slaughter noted that it’s “disposition is not only wrong but needlessly blurs what had been a clear, bright-line rule.”

“Of course, in both fact and law, there was no subpoena, and thus no duty of any kind arose concerning it — no duty to cooperate, no duty to attend the hearing, no duty to testify at the hearing. I would hold, as a matter of law, that Perkins did not (and could not) have a reasonable belief of a duty to cooperate with an unissued, non-existent subpoena. With no such duty, the public policy exception to Indiana’s employment-at-will doctrine does not apply,” the dissenting judge wrote.

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