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Pierce v. Zoetis, Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

February 25, 2015

ZOETIS, INC., and LOIS HEUCHERT, Defendants.



The Plaintiff, Kellie Pierce, has sued her former employer, Zoetis, Inc., and former supervisor, Lois Heuchert, "to enforce civil rights arising out of Plaintiff's employment relationship with Zoetis, Inc.... pursuant to state laws of Indiana." (First Am. Compl. ¶ 1, ECF No. 4). She identifies two causes of action: wrongful termination against Zoetis and Heuchert, and tortious interference with business expectancies against Heuchert only. Defendant Zoetis has filed a Motion to Dismiss [ECF No. 7], on the grounds that Indiana does not recognize an independent cause of action for wrongful termination. Defendant Lois Heuchert has also moved to dismiss the claims against her [ECF No. 21], arguing that there is no independent cause of action for wrongful termination under Indiana law, and that the Plaintiff's factual allegations do not make out a plausible claim for tortious interference with a business relationship. The Plaintiff has responded to both motions, and the matter is ripe for the Court's consideration.


When reviewing a complaint attacked by a Rule 12(b)(6) motion, a court must accept all of the factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Under the liberal notice pleading requirements of the Federal Rules of Civil Procedure, the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint need not contain detailed facts, but surviving a Rule 12(b)(6) motion "requires more than labels and conclusions.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Legal conclusions can provide a complaint's framework, but unless wellpleaded factual allegations move the claims from conceivable to plausible, they are insufficient to state a claim. Id. at 680. A plaintiff can also plead himself out of court if he pleads facts that preclude relief. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011).


A. Unlawful Discharge Under Indiana Common Law

The Plaintiff alleges that Zoetis and Heuchert terminated her employment in retaliation for making internal complaints that she was being sexually harassed. The Plaintiff's First Amended Complaint sets forth facts highlighting the instances of alleged misconduct. The Plaintiff alleges that a training instructor told Plaintiff that she needed to "sex it up" when giving her presentations. (First Am. Compl. ¶ 12, ECF No. 4.) When the Plaintiff told Heuchert, she responded by apologizing and telling the Plaintiff to "just hang in there, you are almost done." (Id. ¶ 13.) After this conversation, Heuchert told the Plaintiff that she needed to do well because the Regional Director was monitoring her closely, which she interpreted as a directive to "do whatever it took to make the trainer give her passing grades." (Id. ¶ 15.) Heuchert would tell the Plaintiff to stroke her counterpart's ego. (Id. ¶ 18.) At an out-of-town meeting, the Plaintiff entered a banquet room with a coworker and Heuchert said "What are you two sleeping together in the same room? You are always together!" (Id. ¶ 21.) Finally, Heuchert yelled loudly at the Plaintiff and used profanity during lunch at a restaurant. (Id. ¶ 27.) After the Plaintiff complained to human resources about this conduct, which prompted an investigation, Heuchert increased the Plaintiff's sales quotas, the Plaintiff had trouble with expense reimbursements and receiving her bonus pay, and, finally, the Plaintiff was terminated from her employment for poor performance.

The Defendants argue that the Plaintiff's common law claim for wrongful discharge must be dismissed because she has not alleged any of the recognized exceptions to the employment at will doctrine that governed her employment relationship with Zoetis. The Plaintiff counters with the argument that, in Frampton v. Central Ind. Gas Co., 297 N.E.2d 425 (1973), Indiana recognized an exception to the employment at will doctrine when an employee is discharged solely for exercising a statutorily conferred right. The Plaintiff maintains that she exercised a statutorily conferred right by making internal complaints about sexual harassment. She points to the Indiana Civil Rights Law (ICRL), Indiana Code § 22-9-1-2, as the source of her statutory right to be free from discrimination in employment. The Plaintiff also cites to Title VII's protection from retaliatory discharge. The Plaintiff submits that "[c]ourts routinely address Frampton retaliatory discharge claims without requiring them to be presented to the [Indiana Civil Rights Commission]" (Pl.'s Brief 8, ECF No. 10 (citing M.C. Welding And Machining v. Kotwa, 845 N.E.2d 188, 193 (Ind.Ct.App. 2006) (addressing claim that defendant terminated the plaintiff's employment because he applied for unemployment benefits), and McGarrity v. Berlin Metals, Inc., 774 N.E.2d 71, 79 (Ind.Ct.App. 2002) (addressing claim that the plaintiff's termination was in retaliation for refusing to file tax return that would amount to illegal tax evasion)).

Because this Court is sitting in diversity, it must ascertain the substantive content of state law as it has been determined by the Indiana Supreme Court, or as it would be by that court if the present case were before it. See Craig v. FedEx Ground Package Sys., Inc., 686 F.3d 423, 426 (7th Cir. 2012). Under Indiana's employment at will doctrine, both the Plaintiff and the Defendant were permitted to terminate the employment at any time for "good reason, bad reason, or no reason at all." Meyers v. Meyers, 861 N.E.2d 704, 706 (Ind. 2007) (quoting Montgomery v. Bd. of Trs. of Purdue Univ., 849 N.E.2d 1120, 1128 (Ind. 2006)). The Indiana Supreme Court has reaffirmed the narrowness of the Frampton public policy exception upon which the Plaintiff relies. The Meyers court noted that the Frampton exception was based on express statutory language prohibiting employers from evading the obligations of the Indiana Worker's Compensation Act. Id. The Act provided that "no rule, regulation, or other device" shall relieve an employer from its obligations, and the Frampton court had found the threat of discharge to be such a prohibited device. Id. (quoting Frampton, 297 N.E.2d at 427-28). "Other than the Frampton exception, 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 consequences." Id. at 707; see also McClanahan v. Remingon Freight Lines, Inc., 517 N.E.2d 390, 393 (Ind. 1988) (An employer may not discharge an employee "for refusing to commit an illegal act for which he would be personally liable."). The Indiana Supreme Court confirmed that any other revision to or rejection of the employment at will doctrine "is better left to the legislature." Meyers, 861 N.E.2d at 707 (quoting Morgan Drive Away, Inc. v. Brant, 489 N.E.2d 933, 934 (Ind. 1986)).

The ICRL is an example of such a legislative adjustment. The ICRL, Indiana Code §§ 22-9-1-1 through XX-X-X-XX, prohibits discrimination in employment on the basis of race, religion, color, sex, disability, national origin, or ancestry and applies to most private and public employers in Indiana. Ind. Code §§ 22-9-1-2, 22-9-1-3. The ICRL expressly authorizes civil suits by private litigants and sets out procedural prerequisites to bringing suit. Ind. Code §§ 22-9-1-16, 22-9-1-17. The Plaintiff has not met these procedural prerequisites. Specifically, she has not filed a complaint with the Indiana Civil Rights Commission (ICRC) prior to commencing legal action. See Ind. Code § 22-9-1-16.

The Plaintiff's submissions suggest that she believes that she can invoke the ICRL as the basis for a public policy that supports her common law retaliatory discharge claim. She also invokes Title VII's anti-retaliation provision. This is wrong. The Seventh Circuit and federal district courts in Indiana have consistently predicted that Indiana courts would not recognize a common law claim for wrongful discharge contrary to public policy where the underlying statute establishes its own remedies and procedures for discrimination and retaliatory discharge. See Groce v. Eli Lilly & Co., 193 F.3d 496, 503-04 (7th Cir.1999) (rejecting the plaintiff's claim for exception to Indiana's employment at will doctrine because the Indiana legislature had created a specific statutory remedy for discharge of an employee who complained about health or safety issue in the workplace); Davenport v. Ind. Masonic Home Found. Inc., No. IP00-1047-C-H/G, 2004 WL 2278754, at *7 (S.D. Ind. Sept. 30, 2004) (holding that the plaintiff was not entitled to seek an independent common law claim for wrongful discharge because remedies for discrimination and retaliatory discharge were available under Title VII, the American with Disabilities Act, and the Indiana Civil Rights Act); Combs v. Ind. Gaming Co., No. NA99-0154-C-H/S, 2000 WL 1716452, at *2 (S.D. Ind. Aug. 30, 2000) (explaining that where the legislature has spelled out the public policy and the remedy, the remedy is already part of the public policy and does not require a common law supplement); Reeder-Baker v. Lincoln Nat'l Corp., 644 F.Supp. 983, 986 (N.D. Ind. 1986) (holding that the plaintiff had no need for the Frampton exception because she had a cause of action under Title VII for unlawful employment practices, including retaliatory discharge).

The Plaintiff had statutory remedies, but failed to invoke them within the time limits established by those statutes. Under these circumstances, allowing her to bring an action under state law for wrongful discharge would unnecessarily expand Indiana's narrow public policy exceptions to the employment at will doctrine. The Court finds the reasoning employed by the Indiana Court of Appeals in a case where a plaintiff argued that his discharge contravened his clear statutory right to protection under Indiana's Whistle Blower Law (WBL) to be applicable:

[W]e conclude that broadening the public policy exception to the employment at will doctrine is not appropriate in Ogden's case. If we were to hold that a claimant could seek judicial review based on a right derived from the WBL through common law and, therefore, bypass the exhaustion of administrative remedies requirement of the WBL, it would make the exhaustion requirements of the WBL illusory.

Ogden v. Robertson, 962 N.E.2d 134, 146 (Ind.Ct.App. 2012). Likewise, the Plaintiff's attempts to obtain judicial review based on a right derived from the ICRL through common law, thereby allowing her to bypass the administrative remedies through which the legislature determined such claims would be ...

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