ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Daniel C. McCarthy Steven T. Fulk
Greenwood, Indiana Jada E. Halse
Fulk & Associates Attorneys at Law, L.L.C.
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
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No. 29S04-0609-CV-326
PAUL MEYERS, Appellant (Plaintiff below),
v.
JAMES MEYERS AND EVA MEYERS, D/B/A/ J. MEYERS CONSTRUCTION, INC.,
Appellees (Defendants below).
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Appeal from the Hamilton Circuit Court, No. 29C01-0407-PL-917
The Honorable Judith S. Proffitt, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 29A04-0412-CV-638
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February 21, 2007
Dickson, Justice.
We reaffirm the Indiana employment at will doctrine and decline to find exception for
alleged wrongful discharge in retaliation for the assertion of a claim for unpaid wages.
Paul Meyers filed a three-count complaint naming as defendants "James Meyers and Eva
Meyers, d/b/a J. Meyers Construction, Inc." Count I seeks damages 1 for failure to pay overtime
under Indiana Code § 22-2-2-4(J); Count II asks for recovery of $8,368.44 for taxes withheld
from the plaintiff's payroll checks but not deposited with the Internal Revenue Service; and
Count III requests damages from the defendants for the wrongful discharge of the plaintiff in re-
taliation for his complaint about their failure to pay overtime and deposit withheld taxes. The
defendants moved to dismiss the retaliatory discharge count for failure to state a claim under
Indiana Trial Rule 12(B)(6) and to dismiss James and Eva Meyers as defendants as to all counts
under Trial Rules 12(B)(6) and 17, asserting that, as individual shareholders, they are distinct
and separate from the corporation, J. Meyers Construction, Inc. The trial court granted the mo-
tion as to both requests. The plaintiff then sought and obtained trial court certification for inter-
locutory appeal regarding two issues: (a) whether the exercise of a statutory right is an exception
to the employment at will doctrine, and (b) whether there is no set of facts upon which James
Meyers and Eva Meyers could be held responsible for the failure to pay overtime to the plaintiff.
The Court of Appeals accepted jurisdiction pursuant to Indiana Appellate Rule 14(B) and
granted relief to the plaintiff. Meyers v. Meyers, 846 N.E.2d 280, 289-90 (Ind. Ct. App. 2006).
We granted transfer and now affirm the trial court's dismissal of the retaliatory discharge count
and reverse the dismissal of the individual defendants.
In this interlocutory appeal, the plaintiff-employee presents two claims: (1) the employ-
ment at will doctrine should not preclude an action for retaliatory discharge for exercising a
statutory right to receive overtime pay; and (2) the individual defendants should not have been
dismissed.
Trial Rule 12 authorizes a party to present by motion certain defenses, one of which is
specified by subsection 12(B)(6): "Failure to state a claim upon which relief can be granted,
which shall include failure to name the real party in interest under Rule 17." A motion to dismiss
asserting Rule 12(B)(6) challenges the legal sufficiency of a complaint. Trail v. Boys and Girls
Club of Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). In ruling on such a motion to dis-
miss, "a court is required to take as true all allegations upon the face of the complaint and may
1
Count I of the plaintiff's complaint seeks "judgment against the plaintiff," which we assume is a
typographical error and was intended to read "against the defendants" as in the other counts of the com-
plaint.
2
only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible un-
der the allegations of the complaint." Huffman v. Office of Envtl. Adjudication, 811 N.E.2d
806, 814 (Ind. 2004). In reviewing such motions, all reasonable inferences must be drawn in fa-
vor of the non-moving party. Id.; Trail, 845 N.E.2d at 134.
1. No Exception to Employment at Will Doctrine
Relying primarily on Call v. Scott Brass, Inc., 553 N.E.2d 1225 (Ind. Ct. App. 1990),
trans. denied, Meyers argues that "[a]n at will employee may maintain a cause of action for a
retaliatory discharge if the employee had been terminated from his employment for exercising a
statutory right or refusing to violate a statutory duty." Appellant's Br. at 5.
We find that the present case is controlled by Morgan Drive Away, Inc. v. Brant, 489
N.E.2d 933, 934 (Ind. 1986), in which we held that, regardless of Brant's allegations regarding
status as an employee or independent contractor, the employment at will doctrine precludes him
from asserting an action for wrongful discharge in retaliation for asserting a claim for unpaid
wages under Indiana Code § 22-2-4-4.
Here, Meyers's complaint alleges that he was discharged by the defendants "as a result of
the Plaintiff['s] complaint to the Defendants about their failure to pay overtime and failure to de-
posit taxes withheld from the Plaintiff's payroll checks." Appellant's App'x. at 5. This claim is
substantively indistinguishable from that in Morgan Drive Away, and is likewise precluded by
the employment at will doctrine.
Indiana generally follows the employment at will doctrine, which permits both the em-
ployer and the employee to terminate the employment at any time for a “good reason, bad rea-
son, or no reason at all.” Montgomery v. Bd. of Trustees of Purdue Univ., 849 N.E.2d 1120,
1128 (Ind. 2006); Cantrell v. Morris, 849 N.E.2d 488, 494 (Ind. 2006); Sample v. Kinser Ins.
Agency, 700 N.E.2d 802, 805 (Ind. Ct. App. 1998), trans. not sought.
On rare occasions, narrow exceptions have been recognized. In McClanahan v. Reming-
3
ton Freight Lines, 517 N.E.2d 390 (Ind. 1988), a truck driver was permitted to pursue a cause of
action against his employer who fired him when he refused to haul a load that exceeded the
amount allowed on Illinois roads, an illegal act for which the employee could have been held
personally liable. The Court recognized an exception to employment at will because not allow-
ing the truck driver "any legal recourse under these circumstances would encourage criminal
conduct by both the employee and the employer." Id. at 393. In Frampton v. Cent. Indiana Gas
Co., 260 Ind. 249, 297 N.E.2d 425 (1973), noting that the Indiana Worker's Compensation Act
expressly provides that "no rule, regulation, or other device shall, in any manner," relieve an em-
ployer from the obligations imposed by the Act, we found that the threat of discharge was such a
"device," and we held that "an employee who alleges he or she was retaliatorily discharged for
filing a claim" under the Act "has stated a claim upon which relief can be granted." Id. at 252-
53, 297 N.E.2d at 427-28. Subsequent to Frampton, however, we declined to extend that excep-
tion to a manager who was terminated when he refused to follow a superior's order to fire an em-
ployee for filing a worker's compensation claim. Wior v. Anchor Indus., 669 N.E.2d 172, 177-
78 (Ind. 1996).
At one point, the Frampton opinion comments that "when an employee is discharged
solely for exercising a statutorily conferred right an exception to the general rule must be recog-
nized." Frampton, 260 Ind. at 253, 297 N.E.2d at 428. 2 The decisions during the intervening
thirty years have made it plain that this language is intended to recognize quite a limited excep-
tion. Other than the Frampton exception, 3 which is grounded on express statutory language, the
Indiana appellate cases permitting retaliatory discharge actions have generally involved plaintiffs
allegedly terminated in retaliation for refusing to violate a legal obligation that carried penal con-
2
This language was subsequently noted in several appellate decisions. See, e.g., Orr v. Westmin-
ster Village North, Inc., 689 N.E.2d 712, 718 (Ind. 1997); Wior, 669 N.E.2d at 177 n.5; Pepkowski v.
Life of Indiana Ins. Co., 535 N.E.2d 1164, 1168 (Ind. 1989); Tony v. Elkhart County, 851 N.E.2d 1032,
1036 (Ind. Ct. App. 2006); M.C. Welding & Machining Co. v. Kotwa, 845 N.E.2d 188, 192, 195 (Ind. Ct.
App. 2006), trans. not sought; Scott Brass, 553 N.E.2d at 1229; Lawson v. Haven Hubbard Homes, Inc.,
551 N.E.2d 855, 858 (Ind. Ct. App. 1990), trans. sought but dismissed; Rice v. Grant County Bd. of
Comm'rs, 472 N.E.2d 213, 215 (Ind. Ct. App. 1984), trans. denied; Campbell v. Eli Lilly & Co., 413
N.E.2d 1054, 1061 (Ind. Ct. App. 1980), trans. denied.
3
Other cases have followed Frampton, allowing an exception to the at-will doctrine where the
employee was allegedly fired for filing worker's compensation benefits. See, e.g., Tony v. Elkhart Coun-
ty, 851 N.E.2d 1032 (Ind. Ct. App. 2006); Markley Enters. v. Grover, 716 N.E.2d 559, 564-66 (Ind. Ct.
App. 1999).
4
sequences. See, e.g., McClanahan, 517 N.E.2d at 393; McGarrity v. Berlin Metals, 774 N.E.2d
71, 78-79 (Ind. Ct. App. 2002) (holding retaliatory discharge claim was viable where employee
alleged he was fired for refusing to file fraudulent tax return), trans. denied; Scott Brass, 553
N.E.2d at 1225, 1226 (permitting employee's claim that her former employer dismissed her be-
cause she complied with a summons for jury duty); Haas Carriage, Inc. v. Berna, 651 N.E.2d
284, 288 (Ind. Ct. App. 1995) (upholding claim by employee alleging discharge for refusing to
haul unlawful load), trans. not sought. But see, e.g., M.C. Welding & Machining Co. v. Kotwa,
845 N.E.2d 188, 195 (Ind. Ct. App. 2006) (citing employer's concession and failure to object to
instruction as basis for upholding relief in action for wrongful discharge in retaliation for em-
ployee's claim for unemployment benefits).
Most cases have refused to extend Frampton. See, e.g., Lawson v. Haven Hubbard
Homes, Inc., 551 N.E.2d 855 (Ind. Ct. App. 1990) (employment terminated for filing claim for
unemployment compensation), trans. not sought; Hamblen v. Danners, Inc., 478 N.E.2d 926
(Ind. Ct. App. 1985) (termination for refusal to submit to polygraph examination), trans. not
sought; Rice v. Grant County Bd. of Comm'rs, 472 N.E.2d 213 (Ind. Ct. App. 1984) (termination
for driving county truck outside county and on unpaved roads), trans. denied; Campbell v. Eli
Lilly & Co., 413 N.E.2d 1054 (Ind. Ct. App. 1980) (employment terminated for complaining
about employer's products and alleging improper activities by supervisors), trans. denied; Martin
v. Platt, 179 Ind.App. 688, 386 N.E.2d 1026 (1979) (employment terminated for truthful report-
ing of supervisor's improper activities), trans. not sought.
In Morgan Drive Away, we emphasize that the "employment at will doctrine has stead-
fastly been recognized and enforced as the public policy of this state" and that "[r]evision or re-
jection of the doctrine is better left to the legislature." 489 N.E.2d at 934. We likewise decline
to allow an exception to the doctrine in this case. The trial court was correct to grant the defen-
dants' motion to dismiss Count III seeking damages for retaliatory discharge.
2. Dismissal of Corporation Shareholders, Directors, and Officers
The plaintiff further claims that the trial court erred in granting the defendants' motion to
5
dismiss the individual defendants. 4 The plaintiff argues that this ruling is incorrect because the
complaint alleges that both the individual defendants and the corporation employed the plaintiff.
On this issue, the defendants' motion to dismiss merely asserted that J. Meyers Construc-
tion, Inc., is a legal entity separate and distinct from its individual shareholders and owners,
James and Eva Meyers. The motion did not address the plaintiff's assertion that he was em-
ployed by both the individual defendants and the corporation. On appeal, the defendants ac-
knowledge the plaintiff's allegation of joint employment, but argue that such a claim is contradic-
tory because the plaintiff is referring to the same employment situation and that the plaintiff fails
to specifically allege or present facts that would support a piercing of the corporate veil.
As noted above, in ruling on a motion to dismiss, a court must "take as true all allegations
upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to re-
cover under any set of facts admissible under the allegations of the complaint." Huffman, 811
N.E.2d at 814. The rules of pleading foster simple, concise, and direct averments and permit al-
ternative and inconsistent claims. Ind. Trial Rule 8(E)(1), (2). Claims presenting alternative
grounds for relief are permitted. Ind. Trial Rule 8(A)(2).
The arguments offered by the defendants to support their request to dismiss the individual
parties are contrary to these principles. These topics are more suitably subjects for consideration
through a request for summary judgment.
Because the defendants have not demonstrated that the plaintiff would be unable to re-
cover under any set of facts admissible under the complaint, they are not entitled to obtain a dis-
missal of the individual defendants under Rule 12(B)(6).
Conclusion
Having granted transfer, thereby vacating the opinion of the Court of Appeals, we affirm
4
While seeking the dismissal of the individual parties as defendants and the outright dismissal of
Count III alleging retaliatory discharge, the defendants' motion did not seek outright dismissal of either
Count I (seeking overtime pay) or Count II (seeking recovery of undeposited payroll tax deductions).
6
the trial court's dismissal of Count III seeking retaliatory discharge for its failure to state a claim
upon which relief can be granted. We reverse, however, the grant of the defendants' motion to
dismiss James Meyers and Eva Meyers as individual defendants as to the remaining Counts I and
II.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
7