Suzanne E. Esserman, Appellant (Plaintiff below),
Indiana Department of Environmental Management, Appellee (Defendant below).
from the Marion Superior Court, No. 49D04-1509-PL-32140 The
Honorable Cynthia J. Ayers, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANT Mary Jane Lapointe Daniel Lapointe
Kent Lapointe Law Firm, P.C. Indianapolis, IN
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Thomas M. Fisher Solicitor General Indianapolis,
IN Andrea E. Rahman Deputy Attorney General Indianapolis, IN
seeks damages under Indiana's False Claims and
Whistleblower Protection Act for what she claims was a
retaliatory discharge by her employer, the Indiana Department
of Environmental Management. Plaintiff's claim does not
sound in tort but is based on the Department's alleged
violation of the Act. Indiana has not abrogated common-law
sovereign immunity for non-tort claims premised on the
violation of a statute. Esserman can thus proceed with her
statutory claim only if the State has waived sovereign
immunity concerning it. Applying the governing standard, we
hold the legislature did not "clearly evince" an
intention to waive sovereign immunity by authorizing
whistleblower claims under the Act against a generic
"employer" without expressly defining that term to
include the State. We thus affirm the dismissal of
Plaintiff's complaint and remand with instructions.
and Procedural History
Suzanne E. Esserman, worked at the Indiana Department of
Environmental Management for nearly twenty-five years. Most
recently, she oversaw claims for disbursements from the
Department's excess-liability trust fund. The fund helps
defray the costs of cleaning up petroleum leaks from
underground storage tanks. Esserman alleges that certain
Department employees approved disbursements from the fund
without proper documentation, and that many applicants
received payments from the fund to which they were not
entitled. Rather than commending Esserman for uncovering
irregularities in trust-fund disbursements, the Department
the Department terminated her in retaliation for objecting to
the improper disbursements, Esserman filed a
wrongful-termination complaint in the Marion Superior Court,
alleging the Department violated the whistleblower provision
(Section 8) of the Indiana False Claims and Whistleblower
Protection Act, Ind. Code ch. 5-11-5.5. (2010 Repl.). The
Department moved to dismiss her complaint on two grounds:
first, under Trial Rule 12(B)(1), claiming the trial court
lacked subject-matter jurisdiction; and, second, under Rule
12(B)(6), claiming Esserman failed to state a claim upon
which relief can be granted. The trial court found for the
Department on both grounds and dismissed her complaint. The
Court of Appeals reversed and remanded, concluding the
Department was not entitled to sovereign immunity, and that
the trial court erred in dismissing the complaint.
Esserman v. Indiana Dep't. of Envt'l Mgmt.,
66 N.E.3d 993 (Ind.Ct.App. 2016). We granted transfer, thus
vacating the Court of Appeals' opinion, and now affirm
the trial court and remand with instructions.
case law is not consistent in addressing whether sovereign
immunity implicates a court's subject-matter
jurisdiction. Rather than resolve this issue today, we note
that the trial court premised its dismissal on both Rules
12(B)(1) and 12(B)(6). We elect to review the court's
dismissal under the alternative ground that Esserman's
complaint failed to state a claim upon which relief can be
granted. We leave for another day whether sovereign immunity
warrants dismissal on jurisdictional grounds.
12(B)(6) motion tests the legal sufficiency of the complaint,
requiring that we accept as true all facts alleged in the
complaint. Price v. Indiana Dep't. of Child
Services, 80 N.E.3d 170, 173 (Ind. 2017) (citation
omitted). "We review 12(B)(6) motions de novo and will
affirm a dismissal if the allegations are incapable of
supporting relief under any set of circumstances."
Id. (citation and internal quotation marks omitted).
We will also affirm the dismissal if the decision is
sustainable on any basis in the record. Id.
has not abrogated common-law sovereign immunity for non-tort
claims premised on the violation of a statute. We hold the
State has not waived sovereign immunity here because Section
8 of the Act-the whistleblower provision-does not clearly
evince the legislature's intention to subject the State
to suit for violations of the Act. The trial court was right
to dismiss Esserman's claim under Trial Rule 12(B)(6).
But the dismissal should have been without prejudice to her
filing an amended complaint.
I.Although this Court has abrogated common-law
sovereign immunity almost entirelyfor tort
claims, we have not done so for ...