Romack v. Public Service Co. of Indiana

615). Although the mort- Ala. 125 So. the in-

gage specifically did not describe amount, in terms of a dollar

debtedness indebtedness

mortgage was to secure "all hereaf-

already owing ... all indebtedness

ter created and all other indebtedness ... may ... reason of the mort- acerue becoming surety

gagors, or either of them person." It is endorser for other language from this that Commercial

clear mortgage Rockovits intended the

and the $9,000 the Rocko-

to secure the loaned to mortgage was created and

vits when $11,200 indebtedness that was subse- the Rockovits be-

quently created when for Lion Construction Com-

came sureties therefore erred in

pany. The trial court

dismissing complaint to fore- Commercial's mortgage.

close the pro- remand for further

We reverse and

ceedings which are consistent with

opinion.

CONOVER, MILLER, J., con- P.J.

cur. ROMACK, Appellant

Jay H.

(Plaintiff Below), COMPANY OF

PUBLIC SERVICE

INDIANA, INC., Appellee Below).

(Defendant

No. 4-985 A 251 Indiana, Appeals

Court

Fourth District. 10, 1986.

Nov.

Rehearing Denied Jan. 5) Material issues fact existed precluded entry of summary

judgment on his various claims. We affirm. Romack applied for Corporate SecurityManager at PSI but

did not position. However, receive the two years later, PSI contacted Romack concern- ing an position. available time, At that Captain was a of the Indiana State Police twenty-five years of service to his credit. Romack informed PSI that he "permanent had employment" with the State Police and would not consider leaving position his there unless the job new of- William H. Sparrenberger, Indianapolis, fered the same "permanency" of employ- appellant. for ment, advancement and benefits. An em- Maine, Michael R. Gayle Skolnik, L. Indi- ployee of PSI told Romack that if he came anapolis, Jacobs, Cox, Curtis M. Cooper, PSI, to work for he would have "such Jacobs, Barlow, Reed Madison, & appel- permanent employment." (R. 296-297) lee. assurances, With these Romack terminated his employment with the Indiana State Po- YOUNG, Judge. lice began working on Septem- Jay H. appeals Romack the trial ber Operations court's 1979 as an Security Su- entry summary of judgment pervisor in at the favor of Marble Hill Nuclear Gener- Public ating Service Company Indiana, of construction site. (PSI) on Romack's fraud, claims of con- As a result employment PSI, of his with fraud, structive negligent misrepresents purchased Romack a house trailer and rent- tion, retaliatory discharge and denial of due ed a tract of place land near employ-

process. Romack makes the following ar- Later, ment. purchased Romack a home in guments on appeal: that locality and family moved his 1) The trial court erred when it re- requested area. PSI that Romack take this fused to supplemental consider his affi- action so he family and his would "become ruling

davit in on his motion to correct part a community.'" Romack was errors; reimbursed relocation costs occa- 2) His sioned discharge the first in pursuant was unlawful move because policy. it violated an to PSI January enforceable oral Romack contract of employment which could not sought be terminat- reimbursement the relocation ed "at will" costs PSI. associated moving family the area. expenses These 3) were reimbursed Summary judgment inappropri- in February of paid 1981 and PSI also ate wrongful on the discharge claim be- having cost of moving company transport cause his discharge was in retaliation for Romack's goods household to the new performance of a statutory right or duty; home. paid The total amount or reim- bursed PSI was approximately 4) The trial court erred in granting $4,694.72. PSI's motion for summary judgment be- cause pleadings sup- July On Romack was dis- ported a cause of action under charged by PSI. requested theories fraud, given fraud, negligent he be in constructive elsewhere misrepresentation and denial pro- of due company years because he was 52 old and cess; and suffering from a injury. work-related back request His was denied because PSI supplemental rect errors affidavit. thought it would be better if a "clean presented supplemental The evidence (R. 300) break" was made. newly Romack sub- affidavit was not discovered and sequently asserting presented filed this action that he could have been to the trial court attempts prior ruling was terminated because his to its on PSI's motion for sum- deal threats with bomb and alcohol and mary judgment. Under these circumstance es, trial court had drug problems no basis the construction site properly it could have sup- slowing progress considered the down work costing money PSI additional plemental because affidavit and necessarily refused delays. Romack also asserted that he was ruling to consider it in on Romaeck'smotion not an at will and had been un- Likewise, to correct errors. we cannot con- lawfully discharged. PSI moved for sum- provided sider the facts supplemen- mary judgment on all of claims tal reviewing affidavit when the trial granted and the trial court the motion. court's action since the prop- affidavit was appeals. erly excluded from consideration at the tri- al court level. With restriction in reviewing summary judg When mind, we examine the remainder Ro- accept ment we must as true the facts arguments. mack's alleged by non-moving party. Eby Romack asserts that his York-Division, Borg-Warner Ind.

App., 626. This leads to an with PSI was not "at will" because PSI had promised "permanent him employment," placed examination what facts were be capable fore the trial court and of consider ie., for the remainder of his working days. if employment Even the argues ation in this action. Romack that pleadings, will, the his first set of initially argues affidavits was at Romack that he supplemental his gave affidavit which was beyond PSI additional consideration his services which modified the nature of presented errors, with his motion to correct proper Therefore, are all for consideration. We dis the Romack ar- employment. agree. gues discharge that his from PSI was wrongful. PSI counters that Romaeck'sdis- normally Error cannot be based charge wrongful was not because he was upon evidence that not was before the trial employee at all times an at will who could court at the time it rules on a motion for discharged any be or without at with cause summary judgment. Rutoskey Johnson v. time. (1984), 620, Ind.App., 472 N.E.2d 623. Indiana, employee However, an not, at will new that evidence could diligence, reasonable may discharged any have been discovered be reason or no produced may presented earlier Danners, reason at all. Hamblen v. Inc. (1985), 926, affidavit with a motion to correct Ind.App., errors. 478 N.E.2d 928. The Procedure, Ind.Rules of Trial Rules employment relation is at unless will there 59(A)(6) 59(H)(1). Johnson, promise See also is a employment for a fixed employee given duration or the supra 59(H)(1) has inde at 628. Trial Rule affida vits cannot present pendent be used to evidence beyond consideration his services party neglected present during that a exchange employment. for the Ham- summary judgment blen, proceeding. supra. employment Mid- An at will rela Engines, Co., States tionship may Inc. v. Mize requiring be converted to one Aircraft (1984), Ind.App., 467 N.E.2d good cause before termination if the em given ample opportuni 1245. Romack ployee, exchange was permanent employ ty ment, additional 'provides independent evidence both at consideration summary judgment hearing and after that results in a detriment to him and a corresponding employer. hearing. benefit oppor Romack refused these tunities. After the court summary entered Co-op, Gardenside Streckfus Inc. Terrace judgment, Romack filed his motion to cor- 425; Hamblen, supra 928; at Ohio employment Table Pad permanent on a basis and to Indiana, Co. Hogan Inc. v. Ind. discharge him only Thus, for cause. App., 424 N.E.2d Therefore, 144. in order moves were not consideration prevail in an action wrongful dis- promise asserted permanent em- charge, employee must show either ployment. addition, we that while note that he has an employment contract which moving one's household to a new location provides for employment of specific a dura- will constitute consideration for sufficient tion or that his at employment will was agreement provide moving expenses, converted to required one which good "it support will not permanent contract of cause before employment could be ter- so as impose require- Ewing minated. v. Board Trustees good ment of upon cause right to termi- Pulaski Hosp. Mem. Ind.App., 486 nate the employee." Co., Ohio Table Pad N.E.2d supra at 146. The evidence is undisputed that Romack received reimbursement for present case, In the Romack ar his moving expenses. The clearly that, gues gave because PSI him oral as reveals that Romack was an at surances permanent employment, he will who could be discharged by PSI for not an at will. prom Such a any reason or for no reason at all. Sum- ise is insufficient to establish a contract for mary judgment on the wrongful discharge permanent employment since period claim was appropriate since the undisputed employment is not for a definite or fixed evidence shows that Romack was an em- duration. Romack was under obligation no ployee will, at discharge and his was not to continue with PSI and unlawful. could have quit retired or time. Although argues he told next PSI that he that the "would con trial court tinue erred in working granting permanently summary my judgment for PSI as be- 'second cause career' for discharged my remainder of for exercis- ing (R. conferred him 299), work life" statute statement creates obligation protected no for him to do so statute. The and does trial court clarify or set found that pleaded no facts duration of employment. sup- ported application See Co., Ohio Table public Pad Hogan, policy Inc. v. exception to the doctrine employment supra 145; at Streckfus, supra. Consider ing only agree. the will. We evidence most favorable to Romack, the employment contract must be Normally, employee an at will treated as one for an indefinite term. may discharged without cause. How ever, exception an exists employ when the argues, however, Romack that gave he ee discharged solely exercising additional valuable consideration to exchange promise perma statutorily right. conferred Morgan Drive employment. nent The Away, Ind., consideration con Inc. v. Brant 933, 935; sisted N.E.2d purchasing Campbell a trailer v. Eli moving Lilly & (1980), App., to an Co. area closer to Ind. the work N.E.2d site. Later exception This PSI, has narrowly insistence of been purchased con strued Supreme Indiana home, Court. another assumed mortgage another Morgan Inc., and relocated Drive family. Away, supra, Romack our su asserts preme that these court public actions were refused to extend additional consider policy exception ation which altered the to a nature of situation in which origi an employee discharged was bringing after nal contract. concedes, however, small these claims payment actions action for the were taken of ser after his initial vices rendered. The court stated: provides PSI. He us no evidence that at the time he took The employment at will doctrine has these actions he steadfastly recognized exchange been did so in and enforced for an promise additional by PSI to continue his public as policy of this State.... rejection or of the doctrine is

Revision Prior to his termination there numer were legislature. left to there- better We threats, drug ous instances of bomb on-site opportunity fore decline this to extend use, on-site alcohol use and on-site theft. statutory right exception] problems Efforts to handle these resulted [the facts of the instant case. personnel being impeded in the in their Subsequently, at 984. the United activity. supervisor Id. acknowledge Circuit, "refused importance Appeals, to Court of Seventh States law, applying Indiana determined that an prevented such occurrences and [Romack] co-pilot fly refused airline who to an unsafe taking necessary from steps clarify to airplane did not fall within the ambit rectify existing (R. 298) situation." "statutory right" exception. The court ac- reporting As result of Romack these knowledged required that the Indiana Code problems superior, to his friction arose operate aircraft to within federal standards ultimately led to Romack's termi However, of airworthiness. the statute did nation. Romack also states that these right part pilots not create a on the or problems safety affected the health and other crew fly members refuse to an employees in surrounding area. they airworthy. aircraft believed was not any does not favor us with de- The court stated: problems tails as to the until his second wrongful The Indiana tort of termination affidavit, previously which as discussed protect blowing" does "whistle as untimely may and therefore not be such, right ... unless a statute creates a considered. left We therefore with the whistle, particular to blow a facts stated above. Romack also cites sev- Indiana's aviation statute does not. Energy eral sections of the Atomic Act of Airlines, Buethe v. Britt 7th support statutory right argu- 1954 in of his Cir., 787 F.2d citing Campbell An ment. examination of these sections Lilly v. Eli & Co. any duty fails to disclose on which N.E.2d 1059-62. rely. speak Romack can The sections Campbell, supra, merely general policy goals in terms of discharged reporting purported viola- rights Similarly, confer no on individuals. Drug tions of the Food and Administration regulations require the OSHA relied on (FDA) regulations. The employee argued employer provide work, place a safe that since the manufacturer was under a from likely free hazards to cause death or duty report required relevant data to the harm. Romack's affidavit fails to FDA, necessarily it duty became a of the disagree- factual evidence as to the employees carry out that mandate. supervisors. ments between himself and his employees concluded that if There is discharged reporting no evidence that PSI refused to violations which integrity supplied affected the provide place. data a safe work FDA, important public policy an and reasonable inferences lead to but one Campbell, supro would be thwarted. supervisors conclusion: Romack and his court, however, 1059-60. The determined disagreed in prob- the manner which the duty that the statute created no or impor- lems were to dealt and the be Campbell report alleged to viola- severity problems. Thus, tance and of the Thus, tions. the court concluded that although argument Romack's that Indiana statutory right exception apply. did not public policy has stated a in the area of safety and worker that workers cannot be present closely case is analo discharged reporting plau- violations is gous to and Campbell. both Buethe Ro- sible, present any Romack fails to factual presented following mack to taking Opera place court. He evidence of what was or occur- the trial was hired as an ring Security Supervisor giv tions and later at the construction site or that he was responsibility en security. discharged for construction indeed of because his efforts to problems.1 deal with these areWe there he left his with the State Po compelled fore to find that the facts lice in accept order to employment with presented by support Romack did not Leaving PSI. job one to accept another did application public policy exception of the to not constitute a sufficient independent det the at will doctrine. support riment a constructive fraud claim since Romack would had to have left Romack asserts that he had a position State Police in order accept valid action fraud, under the theories of employment with PSI under negligent employ constructive fraud and misrepre sentation. ment Summary judgment conditions. proper Co., See Okio Table Pad ly entered on these supra theories. A fraud at 146. ac other "detriments" requires tion misrepresentation past relied on moving consisted of existing facts. It cannot be based on expenses costs incurred in establishing promises performance. of future Eby, su- residence, a new including additional mort pro promises at 628. The and statements gages. The evidence before the trial court made past were not statements of indicated that the moving expenses had facts, or existing They promises been reimbursed. The costs incurred in do or not to do some act in the future and purchasing a new home are not considered do support an action on based fraud.2 a sufficient detriment to the employee because these merely actions also has no action for constructive fraud3 Constructive place fraud in a being may accept be based on promissory misrepresen perform able to job by living However, tations. it must place be shown that near his of work. See Ohio Table promisee suffered a detriment and the Co., supra Pad at 146. PSI was therefore promisor obtained advantage. some Eby, summary judgment entitled to on this supra at 628. Although special count. qualifications may have been benefit to employer, presents no regard evidence of a With negli the claim for to himself. Romack gent shows that misrepresentation, the basic issue is detriment 1. We note that Romack's second affidavit dis- During on various loans from 1975-81. cussed the facts that poli- Romack followed the period the bank had extended these loans sever- cy giving option workers leaving al times. Thus the bank's statement that it assisting work site or in a search whenever a would with the borrower for six more work However, bomb threat superi- was received. months could be construed as more than a ignore ors wanted to the bomb threats in order promise light parties past dealings. stop facts, interruptions. the work These if case, past dealings there are no timely presented, would have bolstered Ro- may interpreted. which PSI's statement argument mack's discharged that he was They simply promises are to do a future act and i.e., fulfilling statutory duty, providing for and factually promise disimilar from the assuring safety required by worker as OSHA events in Acra. However, regulations. we do not address that situation since we are limited to a review of the 3. The trial court determined that Romack had evidence before the trial court at the time of the no action for constructive fraud because he summary judgment. mistake, presented no facts of mutual undue 2. Romack's reliance on First Nat. Bank New influence or duress. This conclusion is based Castle v. Acra reading on Blaising an erroneous v. Mills Acra, misplaced. the court held that an Ind.App. 374 N.E2d action for fraud would lie where a bank stated mistake, Blaising require proof does not un- that it would work with a borrower on a loan prove due influence or duress in order to con- situation for an additional six months and that merely structive fraud. The case states that the borrower's account was fine when in fact may constructive fraud be based on those theo- placed the bank had a hold on the account. The also, ries. Id. at 1169. See Brown v. Brown promise court something noted a that to do in (1956), 563, However, 235 Ind. 135 N.E.2d 614. generally the future is support not sufficient summary judgment proper as a matter of fraud, an action promise but where the is law because Romack failed to evidence coupled history with past dealings a of independent of an detriment. promise may support an action for fraud. Acra, the bank had worked with the borrower

776 protected show that property PSI, through agents, interest its whether made representations false to Romack on which was involved. It is settled law that a dis- he relied supra charged to his detriment. employee deprived discussed, 628. As previously Romack constitutionally protected property interest presents no evidence of an det- Wood, where is an at will. noted, riment. As the trial court the facts (1980), supra; McQueeney v. Glenn Ind. support moving expenses would a claim for App., 806, previ- 400 N.E.2d 810-11. As not a claim discussed, but for the enforcement of a ously Romack was an promise permanent employment. Under at will and therefore property had no inter- employment. est in his presented, PSI was entitled to the circumstances even a claim moving expenses would not be warrant- summary judgment on this claim. ed since the foregoing reasons, For the trial expenses already had been reimbursed. court's decision is affirmed. final claim is that pro violated his 14th Amendment due MILLER, J., concurs. rights by discharging pri- cess him without CONOVER, P.J., separate dissents with hearing. process or notice or a Due claims opinion. in the realm of are based on the idea that creates a CONOVER, Presiding Judge, dissenting. property Bishop interest. v. Wood opinions my With due deference to the 341, 2074, 426 U.S. 96 S.Ct. 48 L.Ed.2d 684. colleagues on the appellate trial and process protections applied Before due are benches, respectfully I my dissent. 1) two elements must be to exist: shown opinion this case involves an issue of sub action; 2) state constitutionally pro public importance requires stantial liberty property tected interest. Wilson change currently existing in the law in Employment v. Board Ind. See. Div. cases,1 in Indiana such as did Justice Hunt 270 Ind. (retired) Judge Campbell er in Ratliff cert. denied U.S. 100 S.Ct. (1981), Ind., Lilly Eli & Co. N.E.2d argument LEd.2d 101. Romack's fails on (trams. denied) (Hunter, J., dissent both elements. ing), 418 N.E.2d 1054. appellate Romack's initial brief majority applies No case cited present any argument failed to or facts to specificity to this with one. The distin- support the existence of state action. He guishing factors are these: argued solely protected property that a in twenty-five years 1. Romack terest was at stake. Romack's failure to Police, training with the Indiana in- State present argument on this element resulted cluding accident, training nuclear failing in his to show a violation of due team, disposal, SWAT bomb and similar process. attempt argue His this element security procedures uniquely made him reply in his brief comes too late. Ind. See PSI, qualified he filled with 8.3(A)(7); App.Proc., Rules of Rule Lam employment" 2. He had "lifetime Yellowbird, Inc., (1986), Ind.App., bert v. 496 N.E.2d 406. Romack also failed to Police, the Indiana State particu- I find the words of Thomas Jefferson of the human mind. As that becomes more larly applicable present- developed, enlightened, to the factual situation more as new dis- made, Engraved ed here. on the interior walls are coveries new truths discovered and capitol opinions change, Jefferson Memorial in our nation's manners with the inscriptions writings circumstances, four based change of ad- institutions must Jefferson, describing principles the chief of his keep pace vance also to with the times. We beliefs. fourth one reads: might require as well a man to wear still the boy coat which fitted him when a as civilized frequent changes I am not an advocate for society regimen to remain ever under the constitutions, laws and but laws and institu- go their barbarous ancestors. progress tions must hand in hand with the 3. He by was recruited PSI to fill a ment with PSI, (8) there was no contract position uniquely requiring person pos- permanent employment because there sessing precisely the skills and abilities he was no consideration in addition to the ser- developed had twenty-five years over his vices contracted to rendered, (4) be Police, with the Indiana State leaving job accept one job another does not constitute a detriment 4. to the employee. He advised PSI he would leave his present position only if Therefore, job they opine, new offered failed to any independent the same show permanency employment, ad- consideration or any detrimental required benefits, elements to elevate an vancement and terminable at will to one whom Upon that basis he was told can be only fired upon good being cause he "permanent would have employment" if shown. (R. he came to 296-297). work for PSI. I disagree, believing It was this state of termi- affairs he termi- nation of employment nated with the with the State Indiana Police State under began Police and presented work for conditions PSI as its here consti- Operations Security Supervisor at the tutes Mar- sufficient detriment to him. There- fore, ble Hill generating plant nuclear require- consideration construc- tion site. ment needed to No case cited majority him elevate above the ter- parallels the facts of this Although one. minable at will status has been met in this Table, Ohio 424 N.BE.2d144 at first blush case. Accordingly, PSI must have had appears analogous, There, it is not. good cause to terminate Romack before it secretary sought the employment, ie. she could terminate him liability, without under help answered a wanted advertisement in a these facts. newspaper. instructive, Ohkio Table is In Mortin v. Federal Ins. Co. Life Discussing however. emerging rules, Ill.App.3d 596, 148, 65 Ill.Dec. Judge Garrard said: the Court of * * * (2) relinquishment The by the em- Appeals of Illinois stated: ployee of existing job, business, general rule of additional [The consider- profession, more, without will im- misconception. ation is a It is actually a pose permanent employment] require- [a rule of convenience to applied if the ment. parties' regarding intent permanent Table, Ohio Earlier, N.E.2d at 146. nature of is not clear. If Judge acknowledged Garrard the existence parties' intention is clearly manifest- foreign cases in jurisdictions "where the ed requirement there is no for "addition- employee was induced to surrender an ex- also, al" consideration. Nee Hilen v. isting 'permanent' employment and the em- Tappin's, N.J.Super. 58, ployer was expressly made aware that he 88 A.2d 818-19. unwilling except to do so perma- employment." nent Id. In College Collins v. Parsons Towa, college 208 N.W.2d professor Was Romack an Employee at Will? was recruited from university one to anoth- my opinion this case follows the line promised er and profes- the tenure and full of cases noted by Judge Garrard in Okio sorship he held at his university, former Table. Romack was recruited PSI be- along $25,000 salary with the and bonuses. cause uniquely he was qualified perform year, After one university reneged on job operation security manager. $15,000. deal and offered him university right majority claimed it had the opines to termi- was no nate the contract as one at will because more will, than an noting: (1) was not for a Collins had the Romack's contract with PSI to do the same. duration, (2) definite time or fixed rejecting position, this traditional the Su- obligation under no employ- continue his preme Court of Iowa stated: job points upon receiving to his surrender of his Collins assurances new em- position tenured at Wisconsin Uni- State ployer guarantee permanen- could similar versity accept position, to to the cy. good I in believe cause must be shown knowledge College. of Parsons The evi- employee order to terminate such an under good dence that he had shows academic lability. these circumstances without So experience credentials as well as in long employee perform- as the recruited is teaching, evidently college be- do, ing sought he was out to there job lieved he would lend stature to its staff. him, good must some reason to fire college appeared eager get The him to apart employer. from the of the Fol- whim surrendering and was that he was aware record, lowing my I review of the do not accept position a secure to its offer. firing refusing believe Wisconsin, Onee Collins left he lost ignore safety turn his back and violations tenure there. Did his surrender of that good at Marble Hill constitutes cause. position constitute consideration for the agreement College? of Parsons Constructive Froud question,

Courts are divided on such a holding yes some and some no.... above, espoused I For the reasons be- considering question, After we had a cause of action lieve Romack viable think the rule to be that an em- better fraud, upon in based constructive addition ployee gives up who other to others. He was lured from his former accept permanent job an offer of a of, position by permanent assurances em- provides independent consideration-at competently He ployment. was fired for least, when as here the sur- performing precise job he was hired to permanent rendered was itself and the only do. Such action PSI is not uncon- (Ci- employer new is aware of the facts. scionable, it also strikes at the heart of a omitted). tations problem constructive fraud meant to agreed college The result is that the Division, In Eby Borg address. v. York employ permanently Collins at (1988), 623, Ind.App., 455 N.E.2d Warner 1971, salary promised and increments Judge said: Miller provided and that Collins consideration fraud of most of Constructive consists agreement college. elements fraud: ma- the same as actual analogous 208 N.W.2d at 599. Collins is representation past existing terial employer to the case because the (constructive promis- facts fraud includes given knew the would not have facts, too), sory representations which up prior secured but for are false and cause a reliance such receiving protec- assurance of the same representation to the detriment of the job. Moody Bogue tions in the new See v. relying. major distinction one so 655, 659; App., Iowa 310 NW.2d types between the two of fraud is that Foundry Rowe Pattern v. Noren actual fraud is intentional or reckless Mich.App. 288 N.W.2d deception whereas constructive fraud 715; (1982), Ala., v. see also Scott Lane provides remedy equitable on more 791, 794; Rabago-Alvares 409 So.2d grounds by refusing to sanction behavior Industries, App.3d Dart 55 Cal. procures an unconscionable advan- Cal.Rptr. 222. tage party regard- to one over another continuity expressed of views less of the intent. This distinction of these cases lead me to the conclusion an course, the element eliminates employer arbitrarily employ- fire an cannot of intentional behavior from actual fraud (1) employer ee when knows the em- but adds another element: in addition to ployee job per- had a former with assured finding promisee, a detriment manency (or firing we non-arbitrary assured advantage must also find an (2) policies) only accepting the new effectively de- cited, Congress has (Cita- lation original). (Emphasis promisor. public policy to clearly mandated clared omitted). tions effect. at 455 N.E.2d at 877. 92 Ill.Dec. received an question no There Ro- expertise the acquiring advantage upon employ- the have addressed courts Our change in em- possessed. mack dilemma. public policy doctrine ment at will does circumstances these under ployment (1980), Lilly & Co. Campbell v. Eli consid- First Dis- substantial our Ind.App., 413 N.E.2d constitute him. to Cer- as a detriment as well eration cogni- employee was without held an trict sanctuary to give does not tainly the law retaliatory dismissal where claim for zable per- Romack promising in behavior PSI's report- him for allegedly fired employer the reneg on the only employment, manent of effects dangerous and lethal ing the duty dereliction of him not for fire deal and superi- drugs to his company-manufactured job too well. performing for but ors. Ratliff, dissenting part, in believed Judge Discharge Retaliatory of action have a cause employee should policy public clearly established is There protecting policy of upon the premised retaliatory claim supporting Romack's drugs. He stated: dangerous from public to be hired discharge. He was of the protection extend would [I] Hill, Manager at Marble Security Operation grant right exception" to policy "public licensing plant subject power nuclear any employee at damages to of action Regulatory Nuclear by the regulation and retaliatory dis- wrongful and will whose Ener- Atomic to the pursuant Commission clearly established charge contravenes 2011-2284. gy Act. 42 U.S.C. § view, if the dis- my public policy.... He recruited expert. was safety was a he establish employee could charged exper- the caliber possessed he because exer- for the in retaliation was dismissed He found position. required for the tise duty granted or cise safety and secur- plant's problems with strong public policy, by such required to his su- problems reported these ity and appro- The damages.... recover should not lower he would Because periors. view, supported as my in remedy, priate safety problems ignore the standards here- commentary cited cases and by the deal, he hired to he had been which Giving damages. in, a tort action fired. damages would action for right of such a Illinois addressed Supreme Court The retaliatory dis- as a deterrent serve public policy Wheeler national very same promote charge and would Ill.2d Co. Caterpillar Tractor policy public compelling strong and 872. 485 N.E.2d 502, 92 Ill.Dec. discharge vi- retaliatory would discharged in re There, employee was an olate. nucle at a to work for his refusal taliation N.E.2d at being operations facility ar while dissenting the denial Hunter, Regula Justice Nuclear in violation conducted Lilly & Co. v. Eli (Compbell of transfer court regulations. tory Commission 1099), ques- also Ind., stated: adherence blind tioned alleged that William have Plaintiffs public policy in cases where at will doctrine of a discharged in violation Wheeler involved, stating: interests policy.... public clearly mandated such confront do we Rarely in the law property lives and of the protection re-ex- cireumstances compelling of radioactive hazards from the citizens existing legal princi- amination important and fundamental material is as deny Here, operates to the rule ple.... vio- from crimes of them protecting as law, even any recourse Campbell legis- lenee, enactment though his actions which allegedly would have on the conduct of the wrong- prompted his discharge served a vital doer or parties similarly situated. Rose public interest defined statute-the Farms, Acre v. Cone protection of public from dangerous N.E.2d 70. I find public inter- drugs. See generally, 21 U.S.C. 301 et § est would clearly be served by deterring seq. (1972). Assuming the veracity of those who operate nuclear facilities from Campbell's allegations, the refusal of the firing employees who properly perform law to recognize his retaliatory discharge jobs their report safety violations. as actionable is repugnant. Accordingly, I would deny PSI's motion 421 N.E.2d at 1100. for summary judgment permit Justice Hunter added: day have his in court. Our continued application inflexible rule, however, neuters internal check which the aware employee

inherently supplies, but also ultimately

deprives government of information

concerning goods or conduct potentially injurious to the public welfare. It

these dubious ramifications which should not be countenanced, as well as the cal- BOARD OF APPEALS, ZONING CITY lous treatment which the permits rule VALPARAISO, OF Indiana, Appellant be foisted on the who, citizen good (Plaintiff Below), faith, acts on the principle of civic duty or the mandates of professional ethical code. BETA TAU HOUSING CORPORATION, (Defendant Appellee Below). 421 N.E.2d at 1101. Reviewing the facts here in concert with No. 4-1185A318. the insightful opinions of Justice Hunter Court Appeals Indiana, and Judge Ratliff, there is strong public Fourth District. policy concern in not silencing employees at power nuclear plants who become aware of Nov. conditions having potential to create a nuclear disaster. If our State policy is to the contrary, I believe it must changed for the benefit of us all. By offering no

form of recourse to an employee who is

fired for refusing to turn his back on safe-

ty violations, we not only do a misdeed to

similarly situated employees, we also do a

horrendous disservice to the public.

Punitive Damages

If Romack's allegations of safety viola-

tions at the nuclear facility true, I believe this presents case a situation where

punitive damages may be legitimately

claimed. Punitive damages may be award-

ed where a serious wrong, tortious in na-

ture, has been committed in an instance in public interest would be served

by the deterrent punitive effect damages

Case Details

Case Name: Romack v. Public Service Co. of Indiana

Court Name: Indiana Court of Appeals

Date Published: Nov 10, 1986

Citation: 499 N.E.2d 768

Docket Number: 4-985 A 251

Court Abbreviation: Ind. Ct. App.