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Perkins v. Memorial Hospital of South Bend

Court of Appeals of Indiana

April 11, 2019

Forrest Perkins, Appellant-Plaintiff,
v.
Memorial Hospital of South Bend, Appellee-Defendant

          Appeal from the St. Joseph Superior Court The Honorable Jenny Pitts Manier, Judge Trial Court Cause No. 71D05-1609-CT-404

          Attorneys for Appellant Shaw Friedman Nelson Pichardo LaPorte, Indiana

          Attorneys for Appellee Jeffery A. Johnson Daniel R. Appelget Mishawaka, Indiana

          Altice, Judge.

         Case Summary[1]

         [¶1] Forrest Perkins was terminated from his employment as a police officer for Memorial Hospital of South Bend (the Hospital) and thereafter filed a complaint for wrongful termination. Although the Hospital identified the reason for his termination as theft of food from the Hospital's cafeteria, Perkins contends that he was fired because, believing he had been subpoenaed, he testified at a former co-worker's unemployment benefits appeal hearing. The Hospital filed a motion for summary judgment asserting that Perkins was an at-will employee and that because he was never actually subpoenaed to testify at the unemployment hearing, the public policy exception to the at-will employment doctrine did not apply. The trial court granted summary judgment in favor of the Hospital. Perkins appeals, arguing that summary judgment was improperly granted.

         [¶2] We affirm.

         Facts & Procedural History

         [¶3] Perkins, who had served as a Michigan State Trooper for over thirty years, began working for the Hospital as a security officer on June 27, 2011. In 2014, the Hospital's security department became a full-fledged police department, at which time Perkins became a police officer for the Hospital. Perkins never entered into a written employment contract with the Hospital, and he was never promised continued employment through any specific date.

         [¶4] On May 12, 2015, Perkins left his shift at the Hospital early, but did not elaborate as to why he needed to leave. Perkins then went to the unemployment benefits appeal hearing for Rick Bradley, a former co-worker, believing he had been subpoenaed to testify.[2] Craig Whitfield, the Assistant Chief of the Hospital's police department, learned of the unemployment hearing and knew that Perkins had left his shift early. Whitfield "put two and two together" and then he and Dan Rutledge, the Chief of the Hospital's police department, drove to the unemployment hearing and confirmed that Perkins was there upon seeing his vehicle in the parking lot. Appellant's Appendix at 137.

         [¶5] The Hospital did not appear for the unemployment hearing, choosing not to contest Bradley's request for unemployment benefits. The Administrative Law Judge (ALJ) did not issue the requested subpoenas to Bradley's three witnesses, including Perkins, but nevertheless, all three witnesses testified before the ALJ. Perkins maintains that his testimony concerned only the Hospital's policies that related to Bradley's termination, with the apparent import being that there was no just cause therefor. At some point after the hearing, Whitfield listened to a recording of what transpired at the unemployment benefits appeal hearing to find out the substance of Perkins's testimony.

         [¶6] On June 7, 2015, a cashier at the Hospital's cafeteria reported to Whitfield that when Perkins went through the line to pay for his food, Perkins did not mention that he had gotten gravy, and thus, Perkins received gravy with his meal without paying for it. Whitfield investigated the matter and determined that Perkins had on two other occasions received a biscuit from the Hospital's cafeteria without paying for it. Perkins explained that he often had breakfast at the Hospital's cafeteria on weekends, each time ordering an omelet and often times, but not always, sliding down the food line to get biscuits and gravy before grabbing a bottle of water. He would then proceed to the cashier where he may or may not have opened his container to show his food to the cashier. Perkins maintains that the amounts charged often varied even if he purchased the same thing. He would pay with his credit card and discard the receipt.

         [¶7] Employee theft was a violation of the Hospital's standard of conduct and was grounds for termination. On June 18, 2015, Perkins was terminated for stealing food from the Hospital's cafeteria. Prior to his termination, Perkins had not received any disciplinary complaints and had never been written up for violations of the employee handbook.

         [¶8] On September 2, 2016, Perkins filed a complaint against the Hospital for wrongful termination. On January 16, 2018, the Hospital filed a motion for summary judgment and designation of evidence, arguing that Perkins was an employee at-will and that he was terminated for a valid, lawful reason. Perkins filed a response in opposition thereto, claiming that under the facts of the case, an exception to the at-will doctrine applied. The trial court held a hearing on the summary judgment motion on March 8, 2018, and four days later, issued its order granting summary judgment in favor of the Hospital. The trial court accepted as true Perkins's claim that he was terminated in retaliation for testifying at a former co-worker's unemployment benefits appeal hearing, but ...


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