Ogden v. Robertson
2012 Ind. App. LEXIS 65
| Ind. Ct. App. | 2012Background
- Ogden was hired in 2006 as Division Manager in IDOI's Title Division within the Consumer Protection Unit.
- Ogden repeatedly complained to Commissioner Atterholt about Mihalik's supervision and management style, claiming mood swings, forgetfulness, and obstacles to his work.
- Ogden drafted draft insurance bulletins after a meeting, leading Mihalik to issue a counseling letter for alleged policy violations and to place it in a personal file.
- Ogden formally complained to the State Personnel Department in September 2007; later that day he was informed at a pre-deprivation meeting that he would be terminated unless he resigned.
- Ogden resigned at the meeting; his computer hard drive was removed; he later filed suit asserting federal and state constitutional claims, whistleblower protections, and due process theories.
- The trial court granted summary judgment for IDOI defendants in 2011, ruling no protected speech, no EO 05-14 due process rights, and no WBL/subject matter jurisdiction; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ogden's memorandum was protected speech under Art. I, § 9 | Ogden contends speech protected by Indiana constitution. | Speech was private, inside employment and not protected. | Not protected; speech not protected Art. I, § 9. |
| Whether Ogden had due process rights under state policy and EO 05-14 | Ogden was entitled to pre-deprivation process as a non-merit employee under EO 05-14. | EXBB classification places Ogden outside EO 05-14 protections. | Ogden did not derive due process rights under EO 05-14. |
| Whether the trial court had jurisdiction over WBL and common-law claims | WBL provides private action; exhaustion argued but not required due to claims. | Administrative remedy must be exhausted; WBL action not private carrier; common-law not applicable. | Trial court lacked jurisdiction; failed exhaustion; WBL claim not properly brought; common-law claim barred. |
Key Cases Cited
- Blackman v. State, 868 N.E.2d 579 (Ind. Ct. App. 2007) (two-step Art. I, § 9 analysis; political vs. private expression)
- Whittington v. State, 669 N.E.2d 1363 (Ind. 1996) (political expression and burden on political speech)
- Dennis v. Bd. of Public Safety of Fort Wayne, 944 N.E.2d 54 (Ind. Ct. App. 2011) (administrative exhaustion doctrine; prerequisites to judicial review)
- Koehlinger v. State Lottery Comm'n of Indiana, 933 N.E.2d 534 (Ind. Ct. App. 2010) (exhaustion exception, futility and administrative remedies)
- Smith v. State, 701 N.E.2d 926 (Ind. Ct. App. 1998) (exhaustion and administrative remedies generally required)
- Cantrell v. Morris, 849 N.E.2d 488 (Ind. 2006) (articulates limits of public policy/Art. I, § 9 as no private right of action)
- Baker v. Tremco, 917 N.E.2d 650 (Ind. 2009) (public policy exception to at-will employment is tightly defined)