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Budner v. Incorporated Town of North Judson

Court of Appeals of Indiana

October 4, 2018

Joseph Budner, Appellant-Petitioner,
v.
Incorporated Town of North Judson, Indiana, Appellee-Respondent.

          Appeal from the Starke Circuit Court The Honorable Kim Hall, Judge Trial Court Cause No. 75C01-1710-MI-45

          Attorney for Appellant Edward J. Merchant Ruckelshaus Kautzman Blackwell & Bemis, LLP Indianapolis, Indiana

          Attorney for Appellee Justin A. Schramm Schramm Law Group, P.C. Winamac, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] Joseph Budner appeals the trial court's order dismissing his petition for judicial review, which he had filed following the termination of his job as a deputy Town Marshal for the North Judson Police Department ("NJPD"). Budner presents a single issue for our review, namely, whether the trial court erred when it granted the Town of North Judson's ("the Town") motion to dismiss under Trial Rule 12(B)(6) and denied him a hearing to which he was entitled under Indiana Code Section 36-8-3-4. We reverse and remand for further proceedings.

         Facts and Procedural History

         [¶2] In late April 2017, Budner, a full-time deputy Town Marshal for the NJPD, had a medical condition that required him to take leave from his job for several weeks. On July 17, when Budner had not returned to his job, the NJPD Town Marshal, Kelly Fisher, wrote Budner a letter stating in relevant part as follows:

This letter serves as notice that your twelve (12) workweeks of leave have been expended as of July 17, 2017, as your FMLA [(Family and Medical Leave Act)] leave was initiated on April 24, 2017. As you have been a valuable member of our police department for a number of years prior to your leave of absence under the federal FMLA, the Town of North Judson will give you until July 31, 2017, to present the Clerk-Treasurer of the Town of North Judson with a letter from your treating physician that you are medically cleared to return to full, active employment, without any physical restrictions or limitations that would hamper your ability to perform the essential functions of your job as a police officer for the Incorporated Town of North Judson Police Department. Failure to deliver this medical clearance will result in our having to release you from employment with our police department, as the Town will have to hire a replacement due to staffing and safety concerns.

Appellee's App. Vol. II at 2. Budner did not respond to that letter, and on August 22, Marshal Fisher wrote Budner another letter stating in relevant part as follows:

As we have still not received a letter from your treating physician indicating the above-mentioned criteria, and as an additional six (6) weeks have elapsed since my last letter, we are no longer able to hold your position with the Town of North Judson Police Department, and as of the end of the workday on August 25, 2017, we must release you from your current employment.

Id. at 3.

         [¶3] On August 28, Budner, by counsel, wrote a letter to the NJPD requesting a hearing regarding his discharge pursuant to Indiana Code Section 36-8-3-4. After the NJPD denied that request, Budner filed a petition for judicial review naming the Town as the respondent. The Town moved to dismiss Budner's petition under Trial Rule 12(B)(6) alleging in relevant part that Budner was not entitled to a hearing. The trial court dismissed Budner's petition following a hearing on the Town's motion. This appeal ensued.

         Discussion ...


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