Forrest Perkins v. Memorial Hospital of South Bend

FILED
Mar 31 2020, 12:18 pm

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

IN THE

Indiana Supreme Court
Supreme Court Case No. 20S-CT-233

Forrest Perkins
Appellant (Plaintiff below)

–v–

Memorial Hospital of South Bend
Appellee (Defendant below)

Argued: October 10, 2019 | Decided: March 31, 2020
Corrected

Appeal from the St. Joseph Superior Court
No. 71D05-1609-CT-404
The Honorable Jenny Pitts Manier, Judge

On Petition to Transfer from the Indiana Court of Appeals
No. 18A-CT-1340

Opinion by Justice Massa
Chief Justice Rush and Justices David and Goff concur.
Justice Slaughter dissents with separate opinion.
Massa, Justice.

Forrest Perkins, who had been an at-will employee working as a police
officer, sued Memorial Hospital of South Bend for wrongful termination
after it purportedly fired him for stealing food from the cafeteria. Perkins
alleges that the true reason for his termination was the adverse testimony
he gave at an unemployment compensation appeal hearing on behalf of a
former coworker. The trial court, however, granted summary judgment
for Memorial, asserting that because Perkins was never actually
subpoenaed to testify, the public policy exception to the at-will
employment doctrine—which would have barred his firing—did not
apply.

Today, we reverse summary judgment and remand. While we hold that
testimony compelled by a subpoena or other statutory duty is protected
under the public policy exception to at-will employment, we again decline
to carve out a new broad exception to the at-will employment doctrine.
Perkins was obliged to cooperate with service of process and provide
complete and honest testimony on the stand. Consequently, the only
remaining question is whether Perkins was—without a paper subpoena—
constructively compelled to testify once he was at the hearing. Because
honest testimony by witnesses is important to the well-functioning of the
state’s various adjudicative bodies, a witness generally should not be fired
for complying with a hearing officer’s instructions. We hold that the
record, as currently developed, does not support summary judgment
when the hearing officer departs from the regulations by failing to
provide a subpoena.

Facts and Procedural History
Forrest Perkins was employed by Memorial Hospital of South Bend for
about four years, first as a security officer and then as a police officer for
the hospital police department. Before working for Memorial, Perkins

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 2 of 17
served for thirty-two years as a Michigan State Trooper. Both parties
acknowledge that Memorial employed Perkins as an at-will employee.

In May 2015, Perkins left work early to testify at an unemployment
benefit appeals hearing against Memorial on behalf of former coworker
Rick Bradley. Perkins was told a subpoena would be waiting for him at
the hearing, and he contends he attended the hearing under the belief that
he was being subpoenaed to testify. As a longtime state trooper, Perkins
was well aware of his obligation to appear and testify pursuant to routine
compulsory process. Five days earlier, Bradley’s counsel had requested
that the hearing officer issue a subpoena for Perkins as a rebuttal witness
and sent a letter notifying Memorial of the request. But once at the
hearing, the hearing officer told Perkins that a subpoena “wasn’t needed”
for him to testify. Appellant’s App., p.121. Memorial, however, did not
appear to contest Bradley’s unemployment claim.

As Bradley still needed to present a prima facie case for unemployment
benefits, Perkins provided very limited testimony about a staff meeting he
attended. Although Memorial did not contest Bradley’s hearing, Craig
Whitfield, Perkins’s supervisor, suspected that Perkins was attending the
unemployment hearing after seeing an email that day on Perkins’s cell
phone from Bradley’s email address with a subject line about the hearing.
These suspicions were confirmed after Whitfield drove to the
unemployment office and saw Perkins’s truck in the parking lot. Whitfield
also acknowledged there was no evidence that Perkins was ever
disciplined for leaving his shift early.

Despite leaving Bradley’s claims uncontested, Memorial requested an
audio recording of the unemployment hearing, which Whitfield listened
to with an HR manager. A copy of this recording is not part of the record,
and the only evidence regarding the hearing in the record is limited
deposition testimony from Perkins.

The next month, a cashier reported to Whitfield that Perkins stole gravy
from the cafeteria. Although Perkins paid for his omelet, a bottle of water,

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 3 of 17
and a biscuit, he did not tell the cashier that he ladled gravy over his
biscuit. According to Memorial, Perkins did not open his Styrofoam
container as the signs in the cafeteria instruct patrons to do when they pay
the cashier.

Memorial then fired Perkins, maintaining, as it still does, that his
employment was terminated for stealing food from the cafeteria in
violation of the employer’s handbook. Memorial contends this reason “is
well-documented, legitimate, and non-discriminatory.” Id., p.52. Before
the alleged incident of gravy stealing, however, Memorial concedes that
“Perkins did not have any disciplinary complaints and was never written-
up for violations of the employee handbook prior to his termination.” Id.,
p.78.

Perkins sued Memorial, alleging wrongful termination. Memorial
moved for summary judgment, arguing that even if Perkins’s allegations
were true, Memorial could fire Perkins for testifying at an unemployment
benefits hearing for a coworker. Because Perkins was not actually and
physically issued a subpoena, Memorial reasoned, Perkins’s testimony did
not fall within the public policy exception to at-will employment. The trial
court granted Memorial’s motion for summary judgment, concluding that
because Perkins was not served with a subpoena, he was not afforded the
protections granted by Indiana’s at-will employment doctrine. Perkins
appealed, and the Court of Appeals affirmed.

We now grant transfer and reverse.

Standard of Review
We review summary judgment de novo, applying the same standard as
the trial court: “Drawing all reasonable inferences in favor of . . . the non-
moving parties, summary judgment is appropriate ‘if the designated
evidentiary matter shows that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.’”
Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 4 of 17
56(C)). “A fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to resolve the
parties’ differing accounts of the truth, or if the undisputed material facts
support conflicting reasonable inferences.” Id. (internal citations omitted).

The burden rests initially on the summary-judgment movant to
“demonstrate the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-movant
to “come forward with contrary evidence” showing an issue for the trier
of fact. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123
(Ind. 1994). We limit our review to materials designated at the trial level.
Fraternal Order of Police, Lodge No. 73 v. City of Evansville, 829 N.E.2d 494,
496 (Ind. 2005).

Discussion and Decision
Drawing all inferences in Perkins’s favor for summary judgment
purposes, both parties agree we should accept as true his claim that he
was actually fired in retaliation for testimony at the unemployment
hearing. Therefore, we must determine whether Perkins could be fired—
under the at-will employment doctrine—for this testimony.

“Indiana follows the doctrine of employment at will, under which
employment may be terminated by either party at will, with or without
reason.” Wior v. Anchor Indus., Inc., 669 N.E.2d 172, 175 (Ind. 1996). “The
presumption of at-will employment is strong, and we are disinclined to
adopt broad and ill-defined exceptions to the employment at-will
doctrine.” Baker v. Tremco Inc., 917 N.E.2d 650, 653 (Ind. 2009) (citing Orr v.
Westminster Village N., Inc., 689 N.E.2d 712, 717 (Ind. 1997)).

Only three exceptions to the doctrine have been recognized by this
Court. Id. “First, if an employee establishes that ‘adequate independent
consideration’ supports the employment contract, the Court generally will
conclude that the parties intended to establish a relationship in which the
employer may terminate the employee only for good cause.” Orr, 689

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 5 of 17
N.E.2d at 718 (citing Romack v. Public Service Co., 511 N.E.2d 1024, 1026
(Ind. 1987). Second, the “public policy” exception protects from
termination an employee exercising a clear statutory right or obeying a
legal duty. Baker, 917 N.E.2d at 654. “Third, this Court has recognized that
an employee may invoke the doctrine of promissory estoppel.” Id. (citing
Orr, 689 N.E.2d at 718).

Both parties agree that Perkins’s case should be analyzed under the
public policy exception. “[W]e have recognized a public policy exception
to the doctrine if a clear statutory expression of a right or a duty is
contravened.” Baker, 917 N.E.2d at 654 (citing Wior, 669 N.E.2d at 177 n.5).
A trio of cases decided by this Court explains how the exception works.

In Frampton v. Central Indiana Gas Co., we held that an employee could
not be fired in retaliation for excising her right to file for disability
benefits. 260 Ind. 249, 253, 297 N.E.2d 425, 428 (1973). Finding that the
statutory language of the disability act barred that firing, we reasoned that
if we upheld the retaliatory discharge under the common law at-will
employment doctrine, we would open “the door to coercion and other
duress-provoking acts.” Id. at 252, 428.

In McClanahan v. Remington Freight Lines, Inc., we added that the public
policy exception includes a “separate but tightly defined exception to the
employment at will doctrine” that protects an employee when he is
discharged by an employer “for refusing to commit an illegal act for
which he would be personally liable.” 517 N.E.2d 390, 393 (Ind. 1988). We
held that the plaintiff could not be fired for refusing to drive an
overweight tractor-trailer through Illinois as he would be personally liable
for the violation if caught. Id. “[F]iring an employee for refusing to commit
an illegal act for which he would be personally liable,” we reasoned, “is as
much a violation of public policy declared by the legislature as firing an
employee for filing a workmen’s compensation claim.” Id.

In Baker v. Tremco Inc., our most recent decision on the public policy
exception, we found that an employee’s mistaken belief of law did not
justify protection. 917 N.E.2d at 655–56. The plaintiff in Baker alleged he
was fired for refusing to sell his employer’s roofing products through an

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 6 of 17
education consortium that he argued contravened Indiana bid rigging
statutes. Id. at 653. We clarified that an employee’s mistaken belief that his
employer’s conduct was illegal under a statute—while in reality the
conduct was expressly authorized by another statute—was not “on par
with the rights and obligations” protected by the public policy exception.
Id. at 655–56.

Perkins offers two alternative theories to explain why his conduct
should be protected as the exercise of a clear statutory right or duty. First,
Perkins argues that we should expand the public policy exception to cover
all testimony by witnesses in unemployment hearings. Second, Perkins
contends that unlike the plaintiff in Baker—who had a mistaken belief that
his employer’s conduct was illegal—Perkins’s mistaken belief that a
subpoena would have required him to testify was not a mistaken
interpretation of the law but of fact. Perkins asserts he was induced to
testify when he was told that a subpoena would be waiting for him at the
hearing. We decline to endorse these broad categorical distinctions.

Memorial responds that since the legislature has granted no express
statutory right or duty to testify as a witness—outside of a subpoena—
testimony does not fall within the limited public policy exception. To
Memorial, Perkins’s acknowledgment that he never received a valid
subpoena controls: his conduct is not protected by the public policy
exception because he had no duty to testify. The unique factual nature of
the case, however, does not support this analysis.

I. Legal duties of a witness in an unemployment
compensation hearing
The General Assembly has charged the Indiana Department of
Workforce Development, or DWD, with administering unemployment
compensation benefits, including adjudication of claims for benefits and
initial appeals before an administrative law judge, or ALJ, appointed by
the department. See Ind. Code ch. 22-4-17. The legislature has also granted

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 7 of 17
the DWD authority to develop binding administrative rules governing
these appeal hearings. I.C. § 22-4.1-3-3 (1994); see generally 646 Ind. Admin.
Code 5-10 (governing “Appellate Procedure” for DWD). Under the rules
adopted by the DWD, unemployment hearings are “conducted
informally,” allowing parties to present evidence supporting their claims
under relaxed procedural and evidentiary rules. 646 I.A.C. 5-10-5(a)
(2011); see, e.g., Id. § 5(b) (“Hearsay evidence that is not admissible under a
recognized hearsay exception may be admitted, but shall not be entitled to
the same evidentiary weight as direct testimony.”). As a gap-filler,
however, the regulations default to rules established in the Indiana Rules
of Trial Procedure and the Indiana Rules of Evidence. Id. § 5(a).

But unlike in a traditional civil case, the authority to issue subpoenas
rests solely with the ALJ in unemployment compensation hearings, and a
party must request a subpoena before a hearing. I.C. § 22-4-17-7 (2006);
646 I.A.C. 5-10-13 (“Whenever the attendance of a witness . . . is desired…
the party must request the issuance of a subpoena. The request must be…
directed to the clerk of the administrative law judge.”); cf. Ind. Trial Rule
45(A)(2) (allowing attorneys to issue subpoenas). “The request will be
granted or denied at the discretion of the administrative law judge” and
requires “a showing of necessity.” 646 I.A.C. 5-10-13 (2011). Once a party
files a timely request, “a subpoena, or a denial of a request for a subpoena,
shall be served on all interested parties, by mail, by the clerk of the
administrative law judge.” Id. (emphases added).

First, since the DWD has not adopted any contrary or more specific
rules about an individual’s responsibilities while being served, we can
assume the unemployment appeals procedure incorporates Trial Rule
4.16, which governs service of process. See 646 I.A.C. 5-10-5(a) (providing
that “in general,” trial rules serve as gap-fillers governing the agency’s
adjudicative process). Under Indiana Trial Rule 4.16, individuals served
with process must cooperate with the service and must not knowingly

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 8 of 17
evade it. 1 Ind. Trial Rule 4.16 (“It shall be the duty of every person being
served under these rules to cooperate, accept service, comply with the
provisions of these rules . . . .”) (emphasis added). By definition, Trial Rule
4.16—a rule that applies to a party “being served”—does not predicate the
duty on knowledge that the underlying document served is valid in all
technical aspects. Indeed, during service of process, there ordinarily is not
time for a person to read a subpoena and reach that determination. It is
only after one has already fulfilled his duty to cooperate with service that
he would have opportunity to examine the contents and language of the
subpoena.

Second, once subpoenaed by a hearing officer, an individual must, by
statute, comply with the subpoena, I.C. § 22-4-17-8 (2006) (failing to obey
an “order of the court may be punished by said court as a contempt
thereof”), and he ultimately commits a misdemeanor if he refuses to obey,
I.C. § 22-4-34-5 (2006). These statutes establish that testifying under
subpoena meets the definition of a legal duty protected under
McClanahan. See 517 N.E.2d at 392–93.

Third, a witness in an unemployment hearing has a clear statutory duty
to tell the truth upon taking the stand, since he will be criminally liable for
giving knowingly false answers or “fail[ing] to disclose a material fact[ ] to
prevent or reduce the payment of benefits to any individual entitled.” I.C.
§ 22-4-34-2 (1978); see also I.C. § 22-4-17-9 (2006) (“No person shall be
excused from attending and testifying or from producing [documents],
and other records before . . . an [ALJ] . . . in obedience to the subpoena. . .
on the ground that the testimony or evidence, documentary or otherwise,
required of the person may tend to incriminate the person or subject the
person to a penalty or forfeiture. . . . Any testimony or evidence . . . shall
be deemed a communication presumptively privileged.”). Since the

1Under Trial Rule 45, “[s]ervice of a subpoena . . . may be made in the same manner as
provided in . . . Rule 4.16.” Ind. Trial Rule 45(C).

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 9 of 17
witness is under a duty to testify honestly, he also cannot be fired based
merely on the truthful content of his testimony. In other words, an
employer cannot fire an employee for refusing to lie or remain silent on
the stand. In sum, once a witness is under oath, he must answer questions
honestly and he generally cannot refuse to answer questions by either
remaining silent or attempting to leave the stand.

Although we find no “clear statutory expression of a right or a duty,”
Baker, 917 N.E.2d at 654, to appear voluntarily at unemployment hearings
without a subpoena’s coercion, we agree with the dissenting opinion
below: in our adjudicative system, accurate witness “testimony is essential
to the process, to the parties and to correct decision-making,” Perkins v.
Mem’l Hosp. of South Bend, 121 N.E.3d 1089, 1094 (Ind. Ct. App. 2019)
(Kirsch, J., dissenting), vacated. Coworkers are often the only non-
interested party able to provide or verify facts critical to the
unemployment benefits adjudicative process. But it is the province of the
legislature to expressly provide statutory protection for such voluntary
testimony by at-will employees. See, e.g., Paul Stieler Enterprises, Inc. v. City
of Evansville, 2 N.E.3d 1269, 1277 (Ind. 2014) (“The right to legislate is
vested exclusively in the Legislature.”).

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. 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.

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 10 of 17
II. Perkins’s compliance with his legal duties
Perkins’s decision to testify at the unemployment hearing implicates all
three of his legal duties at different points throughout the day of the
hearing. Viewing the facts in Perkins’s favor, it is possible to conclude that
he was complying with these distinct duties when he attended the hearing
and provided testimony.

A. Perkins complied with his duty to “cooperate” with
service by appearing at the unemployment office.

Perkins contends that he went to the unemployment hearing because
he believed he would be given the subpoena at the hearing. 2 Indeed,
Perkins’s counsel—who also represented the coworker-claimant in the
underlying unemployment hearing—elaborated that in these hearings, it
was regular practice for an ALJ to “provide [the subpoena] on the day of
[the] hearing.” Appellant’s App., p.282.

Waiting until the day of the hearing to rule on a subpoena request
would violate the hearing procedures adopted by the DWD because the
regulations, in effect at the time, required the ALJ to provide “interested
parties” with a written, mailed decision on a subpoena request before the
hearing. 646 I.A.C. 5-10-13 (2011) (“The request must be made in time for
the subpoena to be issued, and served, prior to the time and date of the
hearing.”). We cannot definitively say whether it was standard practice to
wait until the hearing to decide on these requests, but ample evidence

2To be sure, Perkins could also have reasonably concluded that the lack of required
notification meant he was not under subpoena. But given the limited time between the
subpoena request and the hearing date, he could have also concluded the request was delayed
or lost in the mail. Because Perkins was told a copy of the subpoena would be waiting for him
at the hearing location, his decision was a reasonable attempt at compliance with service. The
act of going to the hearing office is no more grounds for termination than if Perkins had
instead used his lunch break to check his home mailbox for the subpoena.

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 11 of 17
suggests that, in this instance, a written decision on the subpoena request
was not properly sent as the DWD regulation requires before the hearing.3
If this decision were issued as required, Perkins would have known
beforehand whether he was, in fact, under subpoena. We see no reason
why the ALJ’s non-compliance with the written regulation should
unilaterally benefit Memorial.

Perkins maintained contact with his former coworker Bradley, the
requesting party, until the morning of the hearing. Despite his efforts,
Perkins was left in a bind: the ALJ had not yet provided the required
notification of his decision—issuing a subpoena or a notification denying
the request—and Perkins had been told by the requesting party that a
subpoena would be waiting for him at the hearing. Memorial contends
that it could fire Perkins for appearing voluntarily without a subpoena in
hand, but such a simplistic view ignores that Perkins came to the hearing
in an attempt to comply with his duty “to cooperate” with service of a
subpoena under Trial Rule 4.16. We cannot expect a witness cooperating
with service to decide on the underlying subpoena’s validity until he has a
chance to examine it. Since any witness attempting to dutifully comply
with service must cooperate before the validity of the underlying
subpoena is clear, we must consider the reasonableness of his belief given

3The fact that the applicable administrative code section was later updated to remove the
requirement that a subpoena be mailed lends further support to Perkins’s contention that
subpoenas were sometimes provided at the hearing. See 646 I.A.C. 5-10-13(c) (“A subpoena, or
a denial of a request for a subpoena, shall be served on all interested parties by the clerk of the
administrative law judge.”) This observation is not a criticism of the ALJ—we know there
may be case load constraints or other considerations that made the written regulations
unworkable. Still, this case illustrates that there can be real consequences when actual practice
differs from what the written procedure requires.

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 12 of 17
the information known prior to service. 4 Unlike the plaintiff in Baker—
who wrongly believed he had acquired a duty through a purported
conflict within Indiana’s statutory scheme, 917 N.E.2d at 655–56—
Perkins’s choice to attend the hearing can be viewed as a reasonable
attempt to fulfill a clearly defined and applicable duty to cooperate with
service. Like in Frampton, 260 Ind. at 253, 297 N.E.2d at 428, a “critically
important public policy,” is at issue: the integrity of our system of
administrative adjudications depends on witnesses who are willing to act
reasonably in compliance with their duty to cooperate with service.

B. Perkins could still have been compelled to testify
without a physical subpoena.

Although Perkins could not be fired for his decision to come to the
unemployment hearing in compliance with his duty to cooperate with
service, this duty no longer applied once the ALJ told Perkins that a
subpoena “wasn’t needed.” Appellant’s App., p.121. Perkins’s duty to
comply with service under Trial Rule 4.16 evaporated the moment Perkins
knew he would not be served.

Since Perkins was already at the hearing when he found out he had not
been subpoenaed, the next question is whether Perkins was free to leave
the hearing without facing legal jeopardy once he arrived. Contrary to the
reasoning of the opinion below, the mere fact that Perkins was not handed
a physical subpoena does not settle the question of whether he would

4To be clear, we are not endorsing a broad distinction between reasonable, but mistaken,
beliefs of facts as opposed to mistakes of law. Rather, we merely hold that the unique nature
of the duty “to cooperate” with a subpoena requires us to defer to Perkins’s reasonable belief.
Outside the unique context of a subpoena, we do not today create a general rule that a
reasonable mistake of fact always brings an employee’s actions within the protection of the
public policy exception. If this opinion created such a general rule, as the dissent contends,
there would be no need for Perkins to provide evidence at trial that he would have been
compelled to testify once he learned at the hearing that there was no subpoena. See Post, at 2.

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 13 of 17
have faced legal jeopardy if he had left the hearing. See Perkins, 121 N.E.3d
at 1093–94 (“[W]e need not decide whether issuance of a subpoena would
have created a duty for Perkins to testify because Perkins admits that he
was never issued a subpoena. Absent the exercise of a statutory right or
duty, the public policy exception does not apply.”) (footnote omitted). The
ALJ undoubtedly had the power to compel Perkins’s testimony at any
moment through Indiana Code section 22-4-17-7, and Perkins would have
been instantly subject to contempt of court for attempting to leave.

We do not know conclusively why the ALJ thought that a subpoena
“wasn’t needed,” but determining whether Perkins faced legal jeopardy is
the critical inquiry here. For instance, if the ALJ did not issue a subpoena
because the applicable subpoena standard was not met, and Perkins chose
to testify anyway, then his decision to testify was voluntary and should
not be entitled to protection. See Baker, 917 N.E.2d at 656 (holding that a
plaintiff’s mistaken belief of law was insufficient to protect him from
termination). If, on the other hand, the ALJ decided to dispense with the
formality of writing out a subpoena—given that Perkins was already
present—then Perkins was under a constructive duty to testify because a
subpoena would have been issued the moment he tried to leave without
testifying. The integrity of the unemployment adjudicative system
requires that protection be provided if Perkins was under such a
constructive duty to testify. See, e.g., McClanahan, 517 N.E.2d at 393
(“Depriving [an employee] of any legal recourse under these
circumstances would encourage criminal conduct by both the employee
and the employer.”).

Based on this record, we cannot definitively conclude that Perkins
voluntarily chose to testify. Despite Memorial’s decision to leave the
hearing uncontested, Perkins was still called to help establish a prima facie
case for unemployment benefits. The applicable regulations require that
the ALJ “shall” issue a subpoena “upon a showing of necessity.” 646
I.A.C. 5-10-13. Because Perkins’s testimony was needed to establish this
prima facie case, we can surmise that this necessity requirement had been

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 14 of 17
met. Given these circumstances, it is unclear why the ALJ did not issue the
subpoena after it had been properly requested five days before the
hearing. Perhaps, with the witness present the ALJ merely decided to
dispense with formal paperwork to save time.

Based on the facts known, if Perkins tried to leave the hearing before
being sworn, he may have immediately been handed a subpoena
compelling him to testify. We will not automatically hold the ALJ’s failure
to comply with the regulations against a witness attempting to comply
with his statutory duties. These unsettled factual questions mean
Memorial Hospital has not established that Perkins was free to leave
before being sworn in as a witness.

C. After Perkins took the stand, he was under a duty to
testify completely and honestly.

Once on the stand, Perkins could not have left the hearing or lied
without facing legal consequences. Regardless of whether Perkins
voluntarily took the witness stand, he was under a statutory duty to
testify honestly and answer all questions once seated. See I.C. § 22-4-34-2;
I.C. § 22-4-17-9. Since Perkins was under a duty once on the witness stand,
Memorial could not have fired him for testifying truthfully. Consequently,
further inquiry should focus narrowly on the time period between when
Perkins was informed he was not under subpoena and when he physically
took the witness stand.

Conclusion
We continue to strongly presume at-will employment. See Baker, 917
N.E.2d at 653. And we will not create a new exception for voluntary
witness testimony at unemployment hearings. The ability to compel
testimony of a third-party witness, however, is “a critically important
public policy.” Frampton, 260 Ind. at 253, 297 N.E.2d at 428. So testimony
compelled by a subpoena or other statutory duty is protected under the

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 15 of 17
public policy exception to at-will employment. Since ensuring witnesses
appear is vital to the adjudicative process, we will not ordinarily hold the
witness liable for technical or procedural defects in the hearing officer’s
order. Allowing employers to fire an employee merely because of a small
technical mistake by the hearing officer would create the very “fear of
retaliation” that the Frampton Court contemplated. Id. To be sure,
however, this case shows why it is best practice for coworker-witnesses to
confirm they have a subpoena in hand before testifying.

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. 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. We reverse and remand for further
proceedings.

Rush, C.J., and David and Goff, JJ., concur.
Slaughter, J., dissents with separate opinion.

ATTORNEYS FOR APPELLANT
Shaw R. Friedman
Nelson G. Pichardo
Friedman & Associates, P.C.
LaPorte, Indiana

ATTORNEYS FOR APPELLEE
Jeffery A. Johnson
Robert J. Palmer

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 16 of 17
May ● Oberfell ● Lorber
Mishawaka, Indiana

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 17 of 17
Slaughter, J., dissenting.

I respectfully dissent. The trial court was correct to enter judgment in
favor of the defendant, Memorial Hospital of South Bend. And the court
of appeals was correct in affirming that judgment under well-settled
principles of Indiana’s employment-at-will doctrine. Thus, I would deny
transfer and leave the appellate court’s well-crafted decision undisturbed.
But because our Court has elected to weigh into the merits here, I write
separately to explain why I believe our Court’s disposition is not only
wrong but needlessly blurs what had been a clear, bright-line rule.

Indiana has long been an employment-at-will state. Generally, that
means either employer or employee can terminate the employment
relationship at any time, for any reason, or for no reason at all. Over time,
we have recognized three exceptions to this general rule. The only
exception at issue here is our so-called “public-policy” exception—where
an employee is fired for exercising a statutory right or duty.

We first recognized this exception in Frampton v. Central Indiana Gas
Company, 260 Ind. 249, 297 N.E.2d 425 (1973). There, we held that the
plaintiff stated a valid claim for retaliatory discharge by alleging she was
fired for seeking workers-compensation benefits. As we concluded,

under ordinary circumstances, an employee at will may be
discharged without cause. However, when an employee is
discharged solely for exercising a statutorily conferred right[,]
an exception to the general rule must be recognized.

Id. at 253, 297 N.E.2d at 428.

Unlike the statutory right in Frampton, Forrest Perkins had no such
right to testify at his co-worker’s unemployment-benefits hearing. Nor, on
this record, did Perkins have a duty to testify at that hearing because no
legal process compelled his attendance. Thus, I would hold that Perkins
fails to satisfy our narrow public-policy exception to the employment-at-
will doctrine—meaning the Hospital was entitled to fire him, and the trial
court was right to enter judgment in the Hospital’s favor.
 To be clear, I have no quarrel with the Court’s observations that a
prospective witness to a judicial or administrative proceeding has “a clear
duty” to cooperate and accept service of process; that a witness under
subpoena must appear and give testimony; and that a witness under oath
must testify truthfully. I also agree that terminating an employee who tries
or succeeds in fulfilling these legal duties may implicate our public-policy
exception. But the Court takes these acknowledged duties and imposes an
additional duty on would-be witnesses with no legal basis for doing so. A
witness’s duty to cooperate and accept service is modest. It forbids the
witness from evading service, but it does not require the witness to take
affirmative steps to track down the process server. No one served—or
tried to serve—Perkins with a subpoena. Thus, there would have been no
basis for charging an empty-handed Perkins with evading service had he
refused to attend the co-worker’s benefits hearing. Because Perkins never
received a subpoena, he had no duty to appear at the hearing, much less
to testify. That alone should have defeated Perkins’s invocation of the
“right-or-duty” exception to our employment-at-will doctrine.

Yet the Court excuses the lack of a subpoena by observing that Perkins
believed he had to appear and testify—an error the Court describes as one
of fact, in contrast to an error of law, which we have held does not qualify
a plaintiff for relief under our public-policy exception. See Baker v. Tremco
Inc., 917 N.E.2d 650, 655–56 (Ind. 2009). The Court’s proposed distinction
is not persuasive for two reasons. First, I see no justification for treating
mistakes of fact differently than mistakes of law under this exception, and
the Court offers none. Second, and more fundamentally, I see no
meaningful way for distinguishing a mistake of fact from one of law.
What the Court characterizes as Perkins’s mistake of fact (that he would
receive a subpoena at the hearing) could also be viewed as a mistake of
law (that he was duty-bound to attend the hearing without having
received a subpoena). These competing characterizations strike me as
opposite sides of the same coin, and I can discern no intelligible basis for
treating Perkins’s mistake as one versus the other. Yet the Court attributes
outcome-determinative significance to this elusive distinction—as if this
purported difference somehow makes all the difference.

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 2 of 3
 The Court, apparently recognizing the difficulty of classifying this and
other employee errors as mistakes of fact versus mistakes of law, insists it
is not announcing a “broad distinction” between such mistakes. Rather,
the Court says, it is merely recognizing the “unique nature of the duty ‘to
cooperate’ with a subpoena”, which the Court holds requires deference
“to Perkins’s reasonable belief” of his duty to cooperate. 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.

For these reasons, I would either deny transfer or summarily affirm the
court of appeals’ opinion.

Indiana Supreme Court | Case No. 20S-CT-233 | March 31, 2020 Page 3 of 3