concurring in result with separate opinion.
I respectfully concur in result.
I agree that the Handbook is not in itself an employment contract for a definite term. The Handbook states that it creates neither an express nor an implied contract of employment, and further states that Lilly reserves the right to terminate the employment relationship “at any time, for any reason, with or without cause or notice.” Appellant’s Appendix Tab 1, “You and Your Job” at 18. Lilly and MeCalment ostensibly were engaged in an employment-at-will relationship. In Orr, however, our supreme court recognized three exceptions to the employment-at-will doctrine: 1) adequate independent consideration supporting the employment contract; 2) public policy; and 3) promissory estoppel. 689 N.E.2d at 718.
I believe the Handbook contains sufficient language to constitute a promise that disciplinary matters will be handled at the *897lowest level first. The Handbook repeatedly refers to “your supervision,” apparently in reference to each employee’s manager and personnel representative. The Handbook acknowledges that “the procedures and the use of any particular performance management or evaluation form may vary from area to area.” Appellant’s Appendix at Tab 1, “You and Your Job” at 13. Disciplinary action is to be handled on an individual basis, and “[y]our supervision will work with you in attempting to correct any aspects of your performance that require correction.” Id., “You and Your Job” at 16. Disciplinary action is thus vested in each employee’s supervision and the Handbook gives supervision the authority to make commitments to employees. To invoke the doctrine of promissory estoppel in the employment context, the employee must assert and demonstrate that the employer made a promise to the employee; that the employee relied on that promise to his detriment; and that the promise otherwise fits within the Restatement test for promissory estoppel. Id. Here, McCalment alleges that he relied upon the promise of lowest-level disciplinary action in foregoing the formal grievance procedure, and I agree.
In December 2000, McCalment received a warning but was told that the warning would be automatically removed from his file within one year or less and that it could not be used against him after it was removed. Although McCalment did not agree with the evaluation that his performance was unacceptable, he relied upon his supervisor’s promises regarding the warning and did not exercise his rights under the grievance procedure. In June 2001, McCalment received a “coaching” and was told that the coaching would be removed from his file and could not be used against him after one year. Again, McCalment relied upon this promise from supervision and did not exercise his rights under the grievance procedure.
In November of 2002, McCalment was placed on probation in part because of the December 2000 warning and the June 2001 coaching. According to the promises made by "McCalment’s supervision at the time each of those incidents occurred, however, both the warning and the coaching should have been removed from his file by this time and neither should have been used against him. McCalment’s job duties were also altered, and he was placed on an operation for which he had not been trained. On this operation, McCalment contaminated a mixture of chemicals and was thereafter terminated. The majority notes that “regardless of the alleged promises regarding the two disciplinary actions, McCalment was an employee at will and could be fired for any reason, including contaminating mixtures of chemicals.” Op. at 896. The majority concludes, therefore, that McCalment cannot show detrimental reliance. Quite to the contrary. Because of the promises that were made to him, McCalment did not grieve the December 2000 and June 2001 matters. He reasonably relied on the promises that were made to him pursuant to the Handbook that those would no longer be held against him. Moreover, when he learned in November of 2002 that they had not been removed and were being used against him, he lost the opportunity to grieve those previous matters at this time. Thus he not only relied, but relied to his detriment. Although the Handbook is not a contract, Lilly made a bargain with McCalment on which he relied and now can no longer do so.
Although I agree that an employee-at-will can be fired for any reason, our supreme court made it clear in McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392-94 (Ind.1988), that al*898though an employee at will can be fired for any reason, he cannot be fired for an improper reason. Remington Freight Lines could have terminated McClanahan for any proper reason, but our supreme court recognized that it did not; it fired him for refusing to break the law and that it could not do. Likewise, Lilly could have fired McCalment in December 2000 for unsatisfactory job performance or in December 2002 for contaminating chemicals, but it did not. Lilly fired McCalment, at least in part, based upon two previous disciplinary actions that he had been assured could not be considered in this circumstance. Lilly vested discretion in its management to handle disciplinary matters on a case-by-case basis at the lowest level, and McCalment relied upon that discretion in foregoing the formal grievance procedure available to him. Although we cannot now know what the result of the grievance procedure would have been, we do know that the December 2000 and June 2001 incidents should have been taken off McCalment’s record by November 2002, he should not have been put on probation because of those incidents, and he should not have found himself in a job he was not trained to do. Much like the fruit of the poisonous tree doctrine, in which we bar the State from admitting not only evidence directly obtained from an illegal search and seizure, but also all evidence derivatively gained as a result, see Hanna v. State, 726 N.E.2d 384, 389 (Ind.Ct.App.2000), Lilly should not be able to use the employment-at-will doctrine to shield itself from the improper use of previous disciplinary action. In effect, the majority is allowing Lilly to make specific promises which are illusory. That is not the purpose, the intent, or the legal holding of an at-will employment situation.
However, I concur in result because McCalment had an opportunity to grieve when he was placed on probation in November of 2002 prior to his termination. Having failed to grieve at that juncture when he learned that Lilly was not honoring its promise, his reliance became unreasonable and therefore he bears the ensuing consequences.
Although I agree with the majority that the trial court properly dismissed McCalment’s complaint pursuant to Trial Rule 12(B)(6), I reach that conclusion via a different analysis than the majority, and I therefore concur in result.