Opinion
23A-PL-586
01-23-2024
Lisa Bobay-Somers, Appellant-Plaintiff, v. Professional Emergency Physicians, P.C., Appellee-Defendant.
ATTORNEY FOR APPELLANT Kevin J. Mitchell Mitchell Litigation & Advocacy Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Benjamin D. Ice Barrett McNagny LLP Fort Wayne, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable Jennifer L. DeGroote, Judge Trial Court Cause No. 02D03-2108-PL-000329
ATTORNEY FOR APPELLANT
Kevin J. Mitchell
Mitchell Litigation & Advocacy
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Benjamin D. Ice
Barrett McNagny LLP
Fort Wayne, Indiana
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] Professional Emergency Physicians, P.C. ("PEP") terminated Lisa Bobay-Somers's employment, and she filed a complaint against PEP alleging (1) wrongful termination; (2) violation of Indiana's Wage Payment Statute; and (3) breach of contract. PEP filed a motion for summary judgment on all counts, and the trial court granted the motion.
[¶2] Bobay-Somers appeals the trial court's decision and presents two issues on appeal, which we restate as follows:
1. Whether Bobay-Somers was an at-will employee; and
2. If Bobay-Somers was an at-will employee, whether an exception to the employment at-will doctrine applies.
[¶3] We affirm.
Facts and Procedural History
[¶4] We present the facts most favorable to Bobay-Somers. In June 1998, Bobay-Somers signed a contract (the "June Contract") to work for PEP as a physician assistant. The June Contract stated that Bobay-Somers agreed to work full time, on salary, and only at Parkview Hospital. Bobay-Somers continued to work for PEP for the next 23 years. Within her first ten years working for PEP, Bobay-Somers became a part-time employee, was paid hourly, and started to work at multiple facilities on behalf of PEP.
[¶5] On January 21, 2020, Bobay-Somers signed a Physician Assistant Collaborative Agreement with PEP. The Collaborative Agreement provided the specific tasks and procedures that Bobay-Somers was allowed to conduct under the supervision of her collaborating physician.
[¶6] In November 2020, Bobay-Somers stopped submitting for shifts with PEP. Although she had not seen any patients in months, on January 25, 2021, Bobay-Somers contacted PEP's President Dr. Tom Gutwein about the use of Ivermectin for COVID-19 treatment. Dr. Gutwein responded, in part, by saying it was "not recommended to go forward" with Ivermectin as a COVID-19 treatment, but he would "continue to watch the studies." Appellant's App. Vol. III at 83.
[¶7] On January 27, 2021, Dr. Gutwein sent an email to all PEP physicians and physician assistants alerting them about a possible case of Ivermectin toxicity and advising them that prescribing Ivermectin for COVID-19 was considered malpractice. The next day, Bobay-Somers sent a reply email (the "Reply Email") where she questioned the alleged Ivermectin toxicity and suggested the problem could have been the dosage instead of the drug itself. Shortly after she sent the Reply Email, Dr. Gutwein replied, "Lisa, the point was that it is malpractice to prescribe Ivermectin for COVID." Appellant's App. Vol. II at 233.
[¶8] The following day, PEP sent Bobay-Somers an email, which provided in part:
As we look ahead in 2021 and the continuing decrease in available hours (Warsaw the most recent example), it makes sense for a formal separation at this time. I see you haven't worked since early November and are not on the schedule at all for 2021.Appellant's App. Vol. II at 224. This email also included a 90-day termination notice. Bobay-Somers's employment with PEP officially ended on April 30, 2021.
[¶9] On August 17, 2021, Bobay-Somers filed a complaint against PEP alleging (1) wrongful termination; (2) violation of Indiana's Wage Payment Statute; and (3) breach of contract. The complaint provided the June Contract as Bobay-Somers's employment agreement. The wrongful termination claim was based on the idea that Bobay-Somers was terminated because she had sent the Reply Email.
[¶10] On September 7, 2022, PEP deposed Bobay-Somers. During her testimony, Bobay-Somers alleged that an October 1998 agreement (the "October Contract") was her employment contract instead of the June Contract. Bobay-Somers produced the October Contract "a few days" before the deposition, Appellant's App. Vol. II at 92, and the October Contract had not been signed by Bobay-Somers or PEP.
[¶11] On November 2, 2022, PEP filed for summary judgment on all counts. The trial court conducted a hearing on PEP's motion. The trial court granted PEP's motion. In granting the motion, the trial court concluded that Bobay-Somers had been an at-will employee when she was discharged. Bobay-Somers now appeals.
Discussion and Decision
Standard of Review
[¶12] Bobay-Somers argues that the trial court incorrectly granted summary judgment on her claim for wrongful termination. "We review the trial court's summary judgment decision de novo." Z.D. v. Cmty. Health Network, Inc., 217 N.E.3d 527, 531 (Ind. 2023) (citing U.S. Automatic Sprinkler Corp. v. Erie Ins. Exch., 204 N.E.3d 215, 220 (Ind. 2023)). Summary judgement is appropriate if the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 532 (citing Ind. Trial Rule 56(c)). "A genuine issue of material fact exists when there is 'contrary evidence showing differing accounts of the truth,' or when 'conflicting reasonable inferences' may be drawn from the parties' consistent accounts and resolution of that conflict will affect the outcome of a claim." Id. (quoting Wilkes v. Celadon Grp., Inc., 177 N.E.3d 786, 789 (Ind. 2021)).
Bobay-Somers also claims there were genuine issues of material fact related to her breach of contract claim. Appellant's Br. at 15. However, she provides no cogent argument on this issue in violation of Indiana Appellate Rule 46(A)(8)(a). We therefore consider this argument waived and decline to address it. See Davidson v. State, 211 N.E.3d 914, 925 (Ind. 2023).
[¶13] Indiana's summary judgment standard differs from its federal counterpart. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2013) (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). "[W]hile federal practice permits the moving party to merely show that the party carrying the burden of proof lacks evidence on a necessary element, we impose a more onerous burden: to affirmatively 'negate an opponent's claim.'" Id. (quoting Jarboe 644 N.E.2d at 123). "In essence, Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims." Id. at 1004.
1. Bobay-Somers Was an At-Will Employee Because She Did Not Have a Contract for a Definite Term
[¶14] Bobay-Somers argues that she was not an at-will employee because she had an employment contract with PEP. "Historically, Indiana has recognized two basic forms of employment: (1) employment for a definite or ascertainable term; and (2) employment at-will." Orr v. Westminster Vill. N., Inc., 689 N.E.2d 712, 717 (Ind. 1997). If an employee has a contract for a definite term, the employer may not discharge the employee without cause before the conclusion of that term. Orr, 689 N.E.2d at 717. Under the doctrine of employment at-will, employment "may be terminated by either party at will, with or without reason." Perkins v. Mem'l Hosp. of S. Bend, 141 N.E.3d 1231, 1235 (Ind. 2020) (quoting Wior v. Anchor Indus., Inc., 669 N.E.2d 172, 175 (Ind. 1996)).
[¶15] Although PEP acknowledges that Bobay-Somers signed an employment contract, it argues that this contract had been abandoned long before it terminated Bobay-Somers's employment.
A contract will be treated as abandoned when the acts of one party, inconsistent with the existence of the contract, are acquiesced in by the other party. Abandonment of a contract is a mixed question of law and fact; what constitutes an abandonment is a question of law; and whether there has been an abandonment is a question of fact.DiMaggio v. Rosario, 52 N.E.3d 896, 906 (Ind.Ct.App. 2016) (quoting Baker v. Est. of Seat, 611 N.E.2d 149, 152 (Ind.Ct.App. 1993)).
[¶16] When Bobay-Somers filed her complaint, she cited the June Contract as her employment agreement. Per this agreement, Bobay-Somers was a full-time physician assistant on salary at Parkview Hospital. By the time PEP discharged Bobay-Somers, multiple material terms of the June Contract were no longer in effect. Within ten years of signing the June Contract, Bobay-Somers was working as a part-time employee, she was being paid hourly, and she was working for PEP at facilities other than Parkview. For over a decade, Bobay-Somers and PEP had continued an employment relationship that was inconsistent with the material terms of the June Contract. The trial court did not err when it concluded that both parties acquiesced to the abandonment of the June Contract.
[¶17] On appeal, Bobay-Somers argues that the October Contract was her employment contract instead of the June Contract. However, this argument renders the same result because the October Contract is a contract for at-will employment. The October Contract states: "this contract may be terminated at any time without cause by either party," therefore making Bobay-Somers an at-will employee. Appellant's App. Vol. III at 57. Because Bobay-Somers did not have a contract for a definite term, she was an at-will employee when she was discharged.
2. Bobay-Somers's Conduct Does Not Fall under the Public Policy Exception to At-Will Employment
[¶18] Bobay-Somers alternatively asks us to apply the public policy exception to the employment at-will doctrine. She alleges her discharge was in retaliation for the Reply Email, and she argues it would be against public policy to allow PEP to terminate her employment for sending the Reply Email. In reviewing a grant of summary judgment, we must construe factual issues in favor of the nonmovant. Z.D., 217 N.E.3d at 537. Therefore, for purposes of this opinion, we assume the discharge was a result of the Reply Email.
[¶19] Our Supreme Court first recognized a public policy exception to the employment at-will doctrine over 50 years ago. In Frampton v. Central Indiana Gas Co., the Court recognized an exception to the employment at-will doctrine exists when "an employee is discharged solely for exercising a statutorily conferred right." 297 N.E.2d 425, 428 (Ind. 1973). Our Supreme Court explained that allowing employees to invoke this exception and pursue retaliatory discharge claims limits employers' ability to engage in "coercion and other duress-provoking acts." Id.
[¶20] Later, the Court recognized a "separate but tightly defined" public policy exception that applies when an employee is discharged "for refusing to commit an illegal act for which he would be personally liable." McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 393 (Ind. 1988). In McClanahan v. Remington Freight Lines, Inc., a truck driver was discharged for refusing to transport a load that weighed over the legal limit. Id. at 391. The Court determined it would be against public policy to allow employers to create ultimatums where employees "feel pressure to break the law simply out of financial necessity." Id. at 393.
[¶21] In sending the Reply Email, Bobay-Somers claims she was exercising and obeying "three statutory rights or legal duties" that fall within the public interest exception. Appellant's Br. at 17-18. However, Bobay-Somers conflates the exceptions recognized in Frampton and McClanahan. Bobay-Somers claims she was obeying her (1) duty to collaborate with physicians; (2) her duty to exercise reasonable care; and (3) her duty to follow ethical standards. None of these are statutory rights such as the right to file for worker's compensation benefits as in Frampton. Further, PEP did not ask Bobay-Somers to engage in any illegal activity, so the McClanahan extension of the public policy exception does not apply. Our Supreme Court has long shown a general disinclination to broaden the scope of the public policy exception, Perkins, 141 N.E.3d at 1235 (quoting Baker, 917 N.E.2d at 653); Wior, 669 N.E.2d at 177 n.5 (citing McClanahan, 517 N.E.2d at 393), and we will not extend the public policy exception here.
[¶22] Bobay-Somers suggests she was in an "untenable position" where, had she not sent the Reply Email, she might have been subject to liability for not fulfilling her duties to patients. Appellant's Br. at 22. The facts bear a scenario that is far from those that have invoked the public policy exception. In contrast to the employees in Frampton and McClanhan, Bobay-Somers was not given any sort of ultimatum and PEP was not engaging in any coercive activity. In fact, Bobay-Somers had stopped taking shifts two months prior to the termination of her employment, so she was not seeing patients at all when she was discharged. There is no indication that a failure to send the Reply Email would have resulted in any consequence or liability for Bobay-Somers.
Conclusion
[¶23] At the time of her discharge, Bobay-Somers was an at-will employee, and the Reply Email was not an expression of any statutorily conferred right or duty protected under the public policy exception to at-will employment. We hold that PEP is entitled to judgment as a matter of law and affirm the trial court's grant of summary judgment.
[¶24] Affirmed.
Crone, J., and Brown, J., concur.